author: By CROSSLAND, J: „

text:
    SITES, Plaintiff, v. ATLAS POWDER COMPANY et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 38916.
    Decided July 26, 1955.

      Graham, Graham, Gottlieb & Johnston, Zanesville, for plaintiff.
    Meyer, Johnson & Kincaid, Zanesville, Robert P. Barnett, Wilmington, Deleware, for defendant Atlas Powder.
    Knepper, White, Richards, Miller & Roberts, Columbus, Donald P. Jones, Zanesville, for defendant Ohio Pipe Line Construction Co.
    Pugh, Knapp & Miller, Zanesville, Kenneth Hampton, Columbus, for defendant Ohio Fuel Gas Company.
   OPINION

By CROSSLAND, J: „

The pleadings herein consist of the amended petition, answers of each above named defendant company and plaintiff’s reply to the answer of defendant The Atlas Powder Company.

A written stipulation of the parties agrees that residence property of the plaintiff was damaged in the sum of $1800.00 as the result of an explosion, which occurred October 28, 1952, in the partial creation of a ditch at the bottom of the Muskingum River in Zanesville, intended to take pipe to be laid by defendant The Ohio Pipe Line Construction Company for defendant The Ohio Fuel Gas Company.

A jury was waived and the cause submitted to the Court for determination.

Both pre-trial and post trial briefs were submitted by all the parties, ably and exhaustively analyzing the evidence and setting forth respective views of applicable law.

For the purpose of convenience the Court will adopt plaintiff’s suggestion of referring to each named defendant as respectively Powder Company, Construction Company and Gas Company.

Plaintiff’s amended petition avers that the Gas Company in order to construct a pipe line across said river procured the Powder Company and Construction Company to that end, further knowing that use of high powered explosives would be required; that defendant companies knew or should have known that such use would result in an extreme concussion; and that on said 28th day of October, 1952, the Powder Company and Construction Company, being engaged in the construction of said pipe line, used high powered explosives, resulting in a blast and explosion of intense, power, with the knowledge and assent of the Gas Company.

The Powder Company alleged

“that on October 27th and 28th, 1952, it loaned some of its employees, free of charge, to the defendant, The Ohio Pipe Line Construction Company, to assist The Ohio Pipe Line Construction Company with the performance of certain blasting work it was doing in the Muskingum River at Zanesville, Ohio. That said employees at all times mentioned in plaintiff’s petition were under the sole control and direction and the employees of the Ohio Pipe Line Construction Company.”

Each defendant company denied negligence and plaintiff denied the quoted affirmative allegations of The Powder Company.

At the outset, the Court overrules objection of The Construction Company to admission into evidence of Exhibits “1” and “1-A” of The Powder Company, for consideration of their weight and effect and the same are thereby a part of the evidence herein. Such admission into evidence and exception thereto in behalf of The Construction Company shall be noted in the record by the court reporter.

Also in evidence is a written contract entered into October 1, 1952, between the Gas Company and Construction Company stating that:

“the Company (Gas) desires to lay approximately 1,100 feet of 12” medium pressure line replacing the existing 8” medium pressure line from a point approximately 377 feet west of the W. & L. E. Railroad eastward under the W. & L. E. Railroad, the Muskingum River, the Pennsylvania Railroad and B. & O. Railroad to the existing 8” medium pressure line in Underwood Street in Zanesville, Ohio.”

Among express undertakings of the Gas Company were to provide all rights of way and crossing permits and to furnish an authorized representative to the end that all contracted requirements shall be promptly and properly interpreted and work performed by the Construction Company shall be in accordance with the meaning and intent of said agreement.

Among express undertakings of the Construction Company were that it was to start work not later than October 15, 1952, and do everything necessary to complete the line for delivery to the Gas Company by November 10, 1952; to furnish all supervision, labor, tools, equipment and other facilities and all incidental supplies, including explosives; to employ only competent, experienced and skilled foremen, mechanics and workmen “to do the work contemplated hereunder” and “to have at all times a Superintendent on the work vested with full authority to represent it in prosecuting the work contemplated hereunder”; that the Construction Company “shall in all respects be deemed to be an independent contractor and shall indemnify and save harmless the Company (Gas) from all injury and damage of any kind to the property of the Company (Gas) or of any other Corporation or person, and from all claims for damages caused by the Contractor (Construction Company), its employees or agents, in the performance of this contract”; “to promptly and satisfactorily settle — for all damage claims of every nature, which it is obligated to pay hereunder”; “and that Contractor (Construction Company) shall not assign this agreement or sublet any of the work to be performed hereunder without written consent of Company.” (Gas Company)

It is quite clear, contrary to allegations of the amended petition, that the Gas Company did not procure the Powder Company “to construct the aforesaid pipe line” and also that the Powder Company was not “engaged in the construction of said pipe line,” at any time or in any respect, and to this extent plaintiff has failed to sustain her claim.

Any possible liability of the Powder Company to plaintiff is necessarily wholly dependent upon a legal concept of direct responsibility under such facts and circumstances of Powder Company causation as would naturally, necessarily or probably result in the destruction of property. (Louden v. The City of Cincinnati et al, 90 Oh St 144.)

Proceeding from the premise of plaintiff’s amended petition that the Gas Company procured construction of its pipe line in part by the Powder Company, the latter’s engagement therefor, and the accompanying averment that in performance of its engagement pursuant to such procurement by the Gas Company the Powder Company. used high powered explosives with resultant property damage to plaintiff, it is difficult to see how plaintiff can possibly prevail against the Powder Company, upon and under the pleadings.

Considering that plaintiff premises her claim against the Powder Company upon the proposition of procurement and engagement by and at the instance of the Gas Company, it is manifest from the latter’s contract, dealings and conduct that it dealt solely with and relied wholly upon the Construction Company throughout, as well as that the latter accepted wholly and exclusively all undertakings and responsibility for construction, completion and delivery of said pipe line, subject only to the accompanying undertakings and approval of the Gas Company.

Plaintiff does allege, not only that the Gas Company procured the doing of the work by the Construction Company, and the latter’s engagement therein, pursuant thereto, but also the former’s knowledge and assent to the use therefor of high power explosives.

It is, therefore, equally clear that the Gas Company is directly charged by plaintiff with liability to her for its having procured the Construction Company to construct a pipe line, in the course of which the use of explosives admittedly caused damage to plaintiff’s property to the amount of $1800;00, and for which, under the evidence, the Gas Company is liable to plaintiff in said sum, although indemnified therefor by the Construction Company under the terms of their said contract.

“Where the liability for injury is not predicated upon negligence but upon the performance of the very thing which the independent contractor was employed and expected to do, the employer is liable.” (22 American Jurisprudence 183, Sec. 55.)

“Although a principal is not liable as for negligence for injuries caused by an independent contractor, a power company which delegated to such a contractor the work of blasting the bed of a river in constructing its dam, an inherently dangerous operation, with resultant injury to an owner of realty, was liable, as the power company’s liability did not rest on negligence, and it could not escape by delegation.” (Watson v. Mississippi River Power Company, 156 N. W., 188.)

Such liability of the Gas Company in this case is founded upon a public policy, which declines to relieve from liability to an injured third person one contracting or arranging for the use by another of an inherently dangerous instrumentality, quite apart from and without any question or issue of negligence either in the procurement or the performance. (City of Tiffin v. McCormack et al, 34 Oh St 638.)

Upon the evidence, under the pleadings, plaintiff is entitled to recover damages in the sum of $1800.00 from defendants The Ohio Pipe Line Construction Company and The Ohio Fuel Gas Company, for property injury proximately and naturally resulting from use of explosives, October 28, 1952, and judgment is given plaintiff against each.

In arriving at its foregoing conclusion the Court applies the same principle of public policy, invoked against the Gas Company by plaintiff in her amended petition, to the fact and circumstance that the Construction Company admittedly was engaged in the fulfillment of its contractual obligation to the Gas Company and thereby also became directly responsible for the fact that Atlas 75% gelatin in the amount of 8900 pounds was used in blasting the Muskingum River bottom for part of the ditch in which to place the 12” pipe line, which the Construction Company was being paid by the Gas Company to construct at that time.

It is entirely illogical, as well as contrary to authority, for the Construction Company to expect to be relieved of liability to a third person as a result of its participation in the execution of its own contract and, at the same time, not relieve from such liability the party, Gas Company, who contracted to have the work done; which latter company in fact did not physically participate at all in any of the actual construction work, at least in any relevant respect.

The doctrine of third person recourse for explosion damages lies in not depriving the injured third person of a right of action regardless of contracted restrictions and limitations on the part of the contracting parties, — not in canceling, disregarding or lessening the undertakings and obligations assumed in- and imposed by such contract.

Accordingly, the only question, if any remaining, relates to the mildly suggested and very vigorously asserted claims respectively of the two corporate defendants already adjudged liable, Gas Company and Construction Company, that the Powder Company is altogether liable in their stead.

While the Court believes that plaintiff’s failure to make a case against the Powder Company under and pursuant to her amended petition, fully disposes of that question, as previously indicated, it would be an unworthy recognition of the very considerable, thorough and skillful presentation of the matter by respective counsel for the parties, particularly for defendants Powder .Company and Construction Company, for the Court not to address itself somewhat to the aspect of liability which defendants Construction Company and Gas Company, not plaintiff, seek to impose upon defendant Powder Company in this case.

First, Plaintiff’s claim is not predicated upon negligence and the Court neither assumes nor concludes that there was necessarily negligence on anyone’s part. Furthermore, in order justly to consider a charge of negligence, claimed only by defendant Construction Company in its argument of the case, it is necessary to view the situation prospectively as it then presented itself to the parties present. There is no evidence whatever that says or infers that 8900 pounds of dynamite as spaced and placed on October 28, 1952, was in and of itself negligence as compared with the 1000 pounds of the previous day as it was spaced and placed. Certainly, there was no protestation whatever by anyone present, particularly accredited representatives- of defendants Gas Company and Construction Company, in advance of the detonation, with respect to any problem or question of the safety of any third person’s property. It would seem now to be established here from that particular experience of October 28, 1952, that any such future detonation, if similarly resulting, might be said to be negligence by reason oí such previous local experience. This Court cannot say and frankly does not know of its own knowledge and experience previous to October 28, 1952, in the total absence of evidence, whether the quantity of dynamite used, or its placement, or its spacing, or the manner of its detonation, or anything else of the numerous factors involved, done or omitted, separately, collectively, or otherwise, constituted anyone’s or company’s actual negligence. Hence, the Court cannot find or conclude negligence on the part of any defendant, even though the judge of this court, as a local citizen whose residence property was perceptibly shaken by the concussion, takes this occasion and opportunity to express emphatic disapproval of anyone ever again obtaining, granting or utilizing any such permission locally, in the light of the experience of October 28, 1952, after it happened.

The within action is predicated upon the results that naturally followed from the detonation of an explosive substance, because it exploded and thereby proximately produced damage to plaintiff’s house. As to the demarcation point of quantity, placement, spacing, manner of detonation or other man-made factors, at which damage might have been less or nil, or not, the Court can and does say only that there should be no Zanesville river dynamiting whatever hereafter.

Property damage is not, ipso facto, proof of negligence, which is at least part of the reason for the Ohio rule. Conversely, absence of property damage does not in itself establish due care.

As to the Powder Company’s Exhibits 1 and 1-A, the Court does not believe that it is required to determine their effect or lack of effect in this case in order to determine respective company liability, as they are an issue solely ■ between the two companies, Powder-and Construction, and while they could .constitute an interesting academic discussion, this Court believes that in this case they are in no way relevant to the plaintiff’s cause of action, either under the pleadings or upon the evidence. As a mere expression of opinion, unrelated to the facts and circumstances herein, if the Powder Company was otherwise found and considered to be an independent party participant in creating a damaging explosion it would seem to this Court that a rule of sound public policy would preclude excusing it from liability merely because of a written agreement with another company. At the same time, its contents, voluntarily subscribed to by accredited representatives of such other company, would seem to deprive the latter of any recourse for recoupment or contribution.

In so far as consideration to the Construction Company is concerned, it received the technical services of the Powder Company, free of charge, having already agreed to buy said company’s 75% gelatin at a quoted price for it alone, and in purchasing explosives from the Powder Company it was also thereby enabled to perform its contract with the Gas Company at an agreed price to it, the Construction Company, of $14,400, said contract providing that:

“For the completion of the work as outlined herein, the Contractor (Construction Company) will be paid:

“The sum of $14,400 for the complete job, which includes all operations such as trenching, welding, coating, installing river weights, boring, backfilling, making tie-ins, and final clean-up.”

Bearing in mind that the Construction Company was prohibited by its contract, which was the sole and whole occasion of its presence and undertaking, from assigning or subletting said contract or any part of it to any one without written consent of the Gas Company, it is hardly in a position to say that it operated on the job in any respect through anyone else; the practical, if not legal, effect of which is, if not to make other persons present and participating its own employees for the purpose it was then furthering in its own interest and behalf, then certainly at least to make either them or their employer its agents or agent.

There is no doubt or equivocation about the fact that certain employees of the Powder Company were present, both sales and technical representatives, and the Court would be extremely naive to believe other than that they were present primarily in the interest of their employer to help promote its good will and potential future sales. But this particular sale had already been made and the technical services of the Powder Company are not shown to have been exacted or promised as a consideration of said sale or as any part of an agreement relating thereto. Whether the expectation of any such service actually induced or contributed to induce the instant sale of Powder Company’s product is not shown, merely evidence that it was elswehere extensively advertised as available to its customers. In any event, obvious election of the Construction Company to avail itself of technical assistance offered by the Powder Company upon the latter’s terms and conditions was entirely its own responsibility, in the complete absence of any evidence of malevolent motivation on the part of the Powder Company.

The situation then existing as it presents itself most clearly to the Court, from all the evidence, with respect to the three defendant companies, is that, giving full credit and good faith to the Construction Company in the performance and fulfillment of its contracted undertaking with the Gas Company, having purchased from the Powder Company explosives it needed for its “trenching” obligation to the Gas Company, of which the latter was fully aware and expected to be exploded in order to have its 1,100 feet of 12” medium pressure line completed for delivery to it by November 10, 1952, the Construction Company, desiring to avail itself of technical assistance offered by the Powder Company, impliedly made the latter its agent upon that particular occasion for its own purpose of “trenching” the river bottom in executing performance in that respect of its contractual undertaking with the Gas Company. Plaintiff’s property was damaged while defendant Construction Company was executing performance of its contract to defendant Gas Company, in which defendant Powder Company had and could have had no part, excepting only as a possible agent of defendant Construction Company, in the latter’s interest and behalf under the latter’s said contract, at the most.

Journal Entry may be prepared and submitted to opposing counsel by plaintiff’s counsel, finding for plaintiff against defendants The Ohio Pipe Line Construction- Company and The Ohio Fuel Gas Company in the sum of $1800.00, and all costs herein, dismissing defendant The Atlas Powder Company; with judgment accordingly.

Exceptions granted defendants The Ohio Pipe Line Construction Company and The Ohio Fuel Gas Company.


source: Caselaw Access Project

author: By KOVACHY, J.

license: Public Domain

text:
    STATE ex SKILTON, Relator, v. MILLER, Judge et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23303, 23304.
    Decided November 24, 1954.
    Wallich & De Vinne, Cleveland, for relator.
    Roger Zucker, Cleveland, for respondents.
   OPINION

By KOVACHY, J.

These are two proceedings in mandamus originally filed in this court. The Relator, the Respondents and the relief sought in each are the same. In the petitions the Relator says inter alia that he is a citizen of the State of Ohio; that he executed two written complaints under oath and filed one with the Respondent, Richard McGilvery in his capacity as Clerk of the Police Court in the City of Cleveland Heights, and the other with the Respondent, David J. Miller, Judge of said Police Court; that upon such filing he promised complete cooperation with the appropriate police officials together with the production of witnesses in the prosecution of the violations of the state law alleged in the complaints; that he demanded that a warrant or summons be issued thereon as provided by the laws of the State of Ohio; and that both Respondents have refused to comply with his demands.

It is admitted by Respondents that the complaints filed set forth a violation of §3773.24 R. C. In Case No. 23303 Relator avers that he purchased a loaf of bread on Saturday, August 21, 1954 and again on Sunday, August 22, 1954 at a store known as Miether’s Ice Cream Store located at 1920 Lee Road, Cleveland Heights, Ohio. In Case No. 23304 he avers he purchased a loaf of bread on Saturday, August 21, 1954 at a restaurant and store known as Damon’s located at 2466 Fairmont Boulevard, Cleveland Heights, Ohio.

Relator seeks a writ of mandamus commanding the Respondents or either of them “to issue a warrant or summons upon the offense charged in the attached affidavits * * *” in each case.

Demurrers were filed to the petitions by the Respondents on the ground that the petitions do not state facts that show causes of action.

Sec. 2731.02 R. C., in part reads as follows:

“The writ of mandamus may be allowed by the supreme court, the court of appeals, or the court of common pleas and shall be issued by the clerk of the court in which the application is made. Such writ may issue on the information of the party beneficially interested.” (Emphasis ours.)

In the consideration of these demurrers, we are faced at the outset with the question whether the Relator, under the facts set forth in his petitions, is “the party beneficially interested” in accordance with the requirement of the law pertaining to the issuance of the extraordinary writ of mandamus. The Supreme Court of Ohio in State, ex rel., v. Cook, 146 Oh St 348, states the law as follows in the syllabi:

“1. Mandamus is an extraordinary writ and will not lie unless the relator can establish a clear legal right thereto. (Paragraph one of the syllabus of State, ex rel Baen, v. Yeatman, Aud., 22 Oh St 546; paragraph two of the syllabus of State, ex rel. Papadopoulos, v. Industrial Commission, 130 Oh St 77; paragraph one of the syllabus of State, ex rel. Skinner Engine Co., v. Kouri, Dir., 136 Oh St 343; and State, ex rel. Stein, v. Department of Highways, 136 Oh St 252, approved and followed.)

“2. In the absence of a showing that a relator has a beneficial interest, either as an individual, taxpayer, or as a citizen, in obtaining a peremptory writ of mandamus, such writ will not be granted. (Paragraph one of the syllabus of State, ex rel. Brophy, v. City of Cleveland, 141 Oh St 518; and State, ex rel. Latta, Chief of Police, v. White, et al., Industrial Commission, 140 Oh St, 197 approved and followed.)”

Relator in his petitions says that he is a citizen of Ohio. He demands the arrest of persons for violating, he avers, the so-called “Sunday Closing Law.” This is a general law of the State of Ohio and was enacted for the benefit of the citizens of the state as a whole. His interest, therefore, is one that he shares with all citizens. It is not specific or peculiar in himself. A Relator, in order to be justified in obtaining a peremptory writ compelling the arrest of individuals, must show that such arrest would subserve some private or special interest of his or permit him to pursue or protect a particular right residing in him personally and separate and apart from that which he holds in common with the public at large. Only by such a state of facts can he be said to be “the party beneficially interested.” The allegations of the petitions do not show such beneficial interest in the Relator.

18 R. C. L. 303 has the following to say:

“The weight of authority probably sustains the view that to entitle a private citizen to move for and prosecute the writ, he must show that he has some private or special interest to be subserved, or some particular right to be pursued or protected, independent of that which he holds in common with the public at large, and that it is for the public officers to apply when public rights alone are to be subserved.”

See Babbett v. State, ex rel. Dresher, 10 Kansas Rep. 9.

Sanger v. County Comm. of Kennebec, 25 Maine Rep. 291.

It must likewise be borne in mind in this connection that mandamus is not a writ of right and that its issuance or non-issuance rests in the sound discretion of the court. State, ex rel. Mettler, Pros. Atty., v. Stratton, 139 Oh St 86, syllabus 1.

We hold in these cases that a court is not obliged to issue a writ of mandamus compelling the arrest of a person allegedly violating a law, which is a misdemeanor, passed for the benefit of all of the citizens and general in nature, whére the Relator has no personal right involved and deliberately and purposely plans and personally induces the violation. To grant a writ of mandamus under such circumstances would in effect be constituting the Relator a law enforcing agency of the community and tend to engender confusion among the officers charged with the enforcement of law. Such a right extended a private citizen would encourage the zealot, take out of the hands of law enforcing officers the right to exercise their sound judgment in maintaining peace and order and encourage practices not in accord with the American concept of law enforcement.

The Supreme Court of California in its syllabus in Fridts v. Charles, 145 Cal. Rep. 512 states the rule as follows in a situation that is quite comparable to the ones here under consideration:

“An applicant for a writ of mandate to compel the arrest of a person accused by his complaint, filed in the justice’s court, of a misdemeanor in unlawfully using a slot machine for a game of chance, is not a party beneficially interested, within the meaning of the statute. He is not injured thereby in any manner different from the general public, and his application for such writ was properly denied by the superior court.”

Accordingly, the petitions in these cases do not set forth facts showing the Relator, Henry A. Skilton, to be “the party beneficially interested” and consequently fail to show a cause of action in him for which reason the demurrers are sustained, the petitions dismissed, the writs denied and' final judgments rendered the Respondents at Relator’s cost. Exc. O. S. J.

HURD/ PJ, SKEEL, J, concur.


author: By DOYLE, J:

text:
    CLEVELAND (City), Plaintiff-Appellee, v. COLEMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23385.
    Decided June 22, 1955.
    Ralph S. Locher, Director of Law, Bernard J. Conway, Chief Police Pros., Edw. V. Cain, Asst. Police Pros., Cleveland, for plaintiff-appellee.
    Jean Murrell Capers, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth Dstrict.)
   OPINION

By DOYLE, J:

Edward Coleman was charged under Sec. 9.1305 of the Codified Ordinances of the City of Cleveland with being a so-called “hit-skip” driver of an automobile. The ordinance is as follows:

“In case of accident to or collision with persons or property upon any of the public roads or highways, due to the driving or operation thereof of any motor vehicle, the person so driving or operating such motor vehicle and having knowledge of such accident or collision, shall stop, and, upon request of the person injured or any person, give such person his name and address and in addition thereto, if not the owner, the name and address of the owner of such motor vehicle, together with the registered number of such motor vehicle.”

Said defendant was tried before a Judge of the Municipal Court of Cleveland without the intervention of a jury, was found guilty, and was sentenced. From the judgment rendered, an appeal has been perfected to this court.

The evidence upon which the conviction was predicated may be epitomized as follows:

One, Jerry Delfoss, while walking across Superior Avenue at East 49th Street in the City of Cleveland, was struck by an automobile traveling west on Superior Avenue. His body was propelled onto the hood of the car, and thence to the street. The circumstances of the accident were such that any driver or occupant of the car must surely have known of the collision. The automobile proceeded on without stopping.

There were but two witnesses to the accident other than the victim, who testified. One of the witnesses stated that he saw the man struck by a “light grey or green” 1950 or 1951 Buick, “about a series 70.” The other witness say the victim struck by a light grey or green car. The victim could tell nothing of the car which struck him. None of these persons saw the driver, nor did they observe the license number.

Shortly after the commission of the crime, a police officer, in the conduct of an investigation, “learned of two license numbers” — one of which might have been on the car. There is no evidence indicating from what source this information came. In the process of tracing the numbers, one of them was found to have been issued for use on a light grey 1950 Buick owned by the defendant, Edward Coleman. Coleman was thereupon ordered to report to the police station, and it was then discovered that the car had “two saucer-like dents in the hood above the vents about 5 inches by 6 inches, one foot from the windshield.” ,

Coleman was asked what he had been doing on the previous evening (the time of the accident), and he stated that “he was at 31st (Street) and Scovill Avenue visiting friends and had parked his car about 6:10 P. M. and did not leave the premises until about 3:30 A. M.; * * * when he came out of the house for his car he could not locate it; * * * he looked further and found it parked in the next block; * * * he did not notice at that time that there was anything wrong with it; * * * he did not see any dents on the hood; * * * had not noticed any damage until the morning of the 5th, when his wife gave him the notice to appear at the police station.”

He further testified that he had not been involved in an accident on the evening in question, but had attended a party with his friends; that, when he went for his car after the party ended, he found it had been moved 60 or 70 yards from where he had parked it; and that there were no dents on the hood when he parked it before the party.

As heretofore noted, the evidence was found sufficient by the trial court to convict the defendant, beyond a reasonable doubt, of the offense of hitting the victim with his car and driving on without stopping.

It is elementary that .the hearsay testimony given by the police officer, over the objection of the defendant as to the license numbers on the car in the accident,.was error, and the evidence must be rejected by this court in our consideration of the sufficiency of the evidence. We must proceed to decide the case as if it were not in the record. The only remaining evidence is that the defendant owned a car of the same make and color as the one involved in the accident, with two dents in the hood which might have been caused by a person falling on it.

While it was within the trial court’s power to refuse to believe the testimony of the defendant, nevertheless the mere fact of perjury cannot supply the lacking State’s evidence. There must be some evidence to connect the defendant with the crime. There is none here, and to affirm this judgment would be tantamount to the pronouncement of a rule that a person may be convicted of crime on guess and speculation.

It may be that the defendant committed the crime. However, a person cannot be convicted of an offense on circumstantial evidence unless the circumstances are inconsistent with innocence. Furthermore, in order to convict, the circumstances must be proved, and must all point in the same direction, and together must be irreconcilable with any other reasonable hypothesis than that of guilt.

The judgment is reversed, and final judgment entered for the appellant.

HUNSICKER, PJ, MIDDLETON, J, concur.


author: By PHILLIPS, J.

text:
    ULLOM, Plaintiff-Appellee, v. ULLOM, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3636.
    Decided March 24, 1954.
    Paul W. Brown, Youngstown, for plaintiff-appellee.
    Schermer, Goldstein & Millstone, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant appeals on questions of law from a judgment of the Court of Common Pleas, Division of Domestic Relations, granting plaintiff a divorce from defendant on the ground of extreme cruelty, and awarding her alimony and custody of a minor child of the parties.

There is evidence that during an argument between the parties when plaintiff attempted to restrain defendant from striking plaintiff’s son by a former marriage that defendant struck the plaintiff, and that as a result of such argument it was necessary for the Youngstown Police Department to interfere; that such physical violence was accompanied by a continued course of aggravated conduct; and that defendant insisted on plaintiff indulging in abnormal sex relations with him, which has been held to constitute extreme cruelty. See Fulmer v. Fulmer, 11 O. D. (N. P.) 795. Such requests were, as is ordinarily the case, not made in the presence of witnesses, and thus could not be and need not be corroborated as the provision of the statute requiring corroborative evidence does not require that the entire testimony of a party be corroborated.

There is undisputed evidence that the parties have a minor child, whose duty it is the defendant’s to support, and the amount of which support as fixed by the trial court was reasonable and just; and there is the usual disputed evidence that defendant was a good husband.

We can not reverse “the decision, order, decree and judgment of the court of common pleas” on the ground that it “is not sustained or supported by sufficient or proper evidence,” is “completely unsupported by corroborating evidence as required by §8003-12 GC” (§3105.11 R. C.), “is against the manifest weight of the evidence” and “contrary to law”; and that the trial judge erred “in overruling the motion of defendant-appellant for a directed verdict at the conclusion of plaintiff’s case and at the conclusion of the entire case,” which disposes of those assigned grounds of error.

Defendant waived his right to rely on the claimed error that the trial judge erred to his prejudice in overruling his motion for a verdict to be directed in its favor when it accepted the ruling of the court and proceeded with its defense and introduced evidence in its own behalf. Halkies, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

Appellant’s counsel has failed to call our attention to “other errors highly prejudicial to Fred Ullom, defendant-appellant herein, and appearing on the face of the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur in judgment.


author: By BAYNES, J.

text:
    HART, Plaintiff, v. COLUMBUS BUICK CO., et, Defendants.
    Common Pleas Court, Madison County.
    No. 20,045.
    Decided August 16, 1955.

      Ray E. Hughes, Columbus, Forrest E. Sidener, Jr., London, for plaintiff.
    Richmond & Richmond, London, for defendants.
   OPINION

By BAYNES, J.

This cause comes on to be heard on defendants’ motion to dismiss the action for failure to commence it within the statute of limitations. This is a damage action for personal injuries as a result of an automobile collision. Plaintiff was the occupant of one of the vehicles involved and is suing the owner of the other vehicle, the owner’s employee, and the son of the employee.

The motion is supported by the facts alleged in the petition and a stipulation of facts which relates matters of record contained in the case file. Memorandum has been filed on defendants behalf. Nothing has been filed contra by plaintiff.

Plaintiff alleges her cause of action arose on 26 April 1953. On 25 April 1955 the petition was filed praying for damages in the sum of $20,500.00. A praecipe was filed at the same time, regular in form and directed the Clerk to endorse the summons, “Action for damages.” The Clerk issued summons to the Sheriff accordingly. No other relief was prayed for, so that the action was for money only and no copy of the petition was served on any of the defendants.

Sec. 2703.01 R. C. (§11279 GC), provides a civil action must be commenced by filing a petition and causing summons to be issued thereon. Sec. 2703.02 R. C. (11280 GC), provides plaintiff shall also file a praecipe stating the names of the parties, and if for the recovery of money only, the amount for which judgment is asked, and demanding that a summons issue.

Requisite of a summons is provided for in §2703.03 R. C. (§11281 GC), and among other things it states:

“When the action is for the recovery of money only, there must be endorsed on the writ the amount stated in the praecipe, for which, with interest judgment will be taken if the defendant fails to answer.” (Emphasis added.)

The Clerk issued summons on 25 April 1955. As to the two resident defendants the return was made and filed with the Clerk on 26 April 1955. As to the non-resident (of this county) defendant service was made on 26 April 1955 and filed with the Clerk on 2 May 1955. Defendants specially appeared on 27 May 1955 and filed motions to quash and an entry sustaining the quashing of the above service was filed on 2 June 1955 and on this day praecipes were filed demanding summons issue with the amount of $20,500.00 claimed. Service on the two resident defendants was made on 3 June 1955 and filed with the Clerk. Service on the non-resident (of this county) was made on 3 June 1955 and filed with the Clerk on 7 June 1955.

The motion to dismiss the cause was filed on 1 July 1955, the stipulation and memorandum on 18 July 1955. It might be presumed plaintiff has nothing to argue or at least no authority to support an argument since nothing has been submitted to the Court.

Sec. 2305.10 R. C. (§11224-1 GC), provides that a cause of action for bodily injury shall be brought within two years after the cause of action arose. Sec. 2305.17 R. C. (§11230 GC), provides among other things an action is commenced at the date summons is served on each defendant. An attempt to commence is deemed equivalent to commencement when a party diligently endeavors to procure service, if the attempt is followed by service within sixty (60) days.

Defendants contend the action was not commenced within the two year limitation because the original summons was issued according to the praecipe, which summons was void because the statutory requirement, that the summons in an action for money only must contain the amount sought, is mandatory. If this is true the summons is jurisdictional.

It would be assumed that such a question would have been decided many times and reported. Defendants cite only one case, Crabbe v. Jones, (C. P.) 45 Abs 443. Same ease in Court of Appeals, which affirmed the trial court, styled Crabbe v. Hertzig, 66 N. E. 2d. 659. The facts as to the summons in those cases are identical to this case. Summons was defective for the reason that no amount sought was endorsed on the summons which was issued within the period of the statute of limitations. It was quashed and was followed within sixty (60) days of the filing of the petition by service of a legally valid summons.

Both the trial and the appellate courts held since the original summons were not “legal summons” that plaintiff had not made diligent efforts to procure service. So that, no such “attempt” would permit plaintiff to have advantage of the sixty (60) day savings clause, contained in §2305.17 R. C., above referred to. In other words, when plaintiff failed to commence his action according to §2305.17 R. C. he did not have legal summons upon which to avail himself of the sixty day (60) savings clause.

It may well be that a different conclusion would or could be reached if the defect in the summons could be construed to make it voidable but not void. Or if it could reasonably be said that the void defect was not a result of a lack of diligence on plaintiff’s part. As is pointed out in an article titled, “Commencement of an action in Ohio for the purpose of the statute of limitations,” in 16 Ohio State Law Journal 140, 146;

“The plaintiff’s attorney who is so close to the expiration of his statute of limitations that he may have to depend upon the sixty day savings clause for timely commencement, might well check his praecipe for summons carefully, and after filing of tfie petition and praecipe, wait for the Clerk to prepare the summons, so that he can inspect it for style of the case, endorsement, signature, seal and date, and’ see it physically submitted to the sheriff.”

The Court is of the opinion that plaintiff in this case did not commence her action prior to the expiration of the two year statute of limitations for her action, and that the case should be dismissed at plaintiff’s costs.

Defendants’ counsel should prepare an entry accordingly and submit the same to plaintiff’s counsel and to the Court for approval and filing.


author: By THE COURT.

text:
    STATE ex WANAMAKER, Plaintiff, v. WEYGANDT, Chief Justice et, Defendants.
    Ohio Appeals, Second District, Franklin County.
    No. 5108.
    Decided June 12, 1954.
    Walter B. Wanamaker, Akron, for plaintiff.
    C. William O’Neill, Atty Geni., Joseph S. Gill, 1st Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By THE COURT.

Submitted by the defendants upon a general demurrer to the petition in that it does not state facts which show a cause of action.

At the time of the hearing on the demurrer the members of the Court expressed their opinion as to the sufficiency of the averments of the petition to justify the issuance of the writ sought. We granted counsel opportunity to brief the question. We were then and are now of opinion that this Court is without jurisdiction or authority to issue a writ of prohibition against the defendants who constitute a Court superior to this Court.

There may be other reasons to support the sustaining of the demurrer, but it is not necessary to discuss them.

Counsel for plaintiff had requested oral argument on the demurrer but in view of the full presentation at the time of the oral hearing and the brief with which the Court has been favored, we believe that it would serve no good purpose to have the matter presented further orally.

The demurrer will be sustained.

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


author: Per CURIAM:

text:
    SCHADT, etc., Plaintiff-Appellee, v. RANCKEN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22745.
    Decided May 11, 1953.
    Oliver A. Thompson, Cleveland, for plaintiff-appellee.
    B. Bill Murad, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This appeal comes to this Court on questions of law from a judgment of the Municipal Court of Cleveland overruling a motion to vacate a default judgment entered during term.

The record before this Court indicates that the appellant filed a motion seeking a vacation of a default judgment for the reason that he had not been notified of the time of trial upon the merits. The action being a second class case, no pleadings are required as provided by the rules of the Municipal Court.

The record discloses that there was no hearing on the motion to vacate and that the sole evidence before the court was the affidavit of the defendant stating that “he was never apprised of the time and place of the trial in this cause” and “that if the court so decides, I will confess judgment for the costs incurred to date in this cause * *

Sec. 10377 GC in pertinent parts reads as follows:

“Sec. 10377 GC. Setting aside judgment: When judgment has been rendered against a defendant in his absence, it may be set aside by the justice upon the following conditions:

“1. That within ten days after judgment was entered, his motion in writing, sworn to by the defendant, his agent, or attorney, be filed, setting forth a sufficient reason for the absenee of the defendant;

“2. That he pay or confess judgment for the costs awarded against him; * *

We hold that it constituted an abuse of discretion on the part of the trial court not to vacate a default judgment rendered against this defendant in his absence, in the face of an affidavit sworn to by him setting forth good and sufficient reasons for such absence. Pope v. Pollock, 1 O. C. C. Rep. 347.

The judgment of the Municipal Court therefore is reversed and the cause is remanded for further proceedings according to law. Exceptions allowed. Order see journal.

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


text:
    SHRANKO, d. b. a. ERNIE’S BAR, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4907.
    Decided October 16, 1953.
    Isadore Topper, Columbus, Wasserman, Stillman & Fink, Adrian B. Fink, Jr., of Counsel, Cleveland, for appellant.

      Hon. C. William O’Neill, Atty. Geni., Ralph N. MahafCey, Robert B. Rady, Asst. Attys. Geni., Columbus, for appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control which had affirmed' an order of the Department of Liquor Control revoking Class D-l, D-2 and D-3 permits of appellant.

The citation against the appellant was that she had sold intoxicating liquor, namely beer, in violation of the provisions of §6064-22 GC. The finding was that,

“on June 30, 1951, the permit holder and/or her agent, or employer, sold and furnished, on the said permit premises, beer, to persons who were then and there intoxicated, to wit; Joseph Bokar, William Finnerty and Frank Vuytich, which sales were in violation of the provisions of the Ohio Liquor Control Act.”

The errors assigned are that the finding of the Court of Common Pleas is against the manifest weight of the evidence and is contrary to law and that the order of'revocation is not supported by. reliable, probative and substantial evidence on the whole record and is not in accordance with law.

At the outset, we hold that there is no support in the record for the finding of a sale of beer to Joseph Bokar. There is also a supplemental charge that permittee sold intoxicating liquor, namely, whiskey, to Joseph Cantlin on the 4th of August, 1951. Testimony was taken relative to this charge, but the Board did not make it a subject of its finding and it is only involved in this appeal so far as the evidence taken on this phase of the case may relate to the issues on the other charges.

The main contention of this appellant is that there is. no support or, at most, insufficient proof of a sale of beer to Finnerty and Vuytich, the two persons named as the ones to whom it was claimed the sales were made. Supporting the contention, appellant asserts properly that the finding of the Board is that there were sales to the named persons in violation of §6064-22 GC which, insofar as applicable, reads:

“Sales of beer and intoxicating liquor under any and all classes of permits authorized by the liquor control act and from state liquor stores, shall be subject to the following restrictions, in addition to those lawfully imposed by the rules, regulations, or orders of the department, to wit: * * *.

“2. No sales shall be made to an intoxicated person.”

The citation charges “did sell and furnish” and the finding is that the liquor was “sold and furnished.” It will be noted that §6064-22 GC does not use the word “furnish” and it is contended that it is essential to the proof of the Board that a sale in the legal acceptation of the term, namely for a consideration, must appear to support the charge. Inasmuch as the Board found that the liquor was sold and furnished, it follows that it concluded that there was a sale and this conclusion was concurred in by Judge Randall of the Common Pleas Court on review.

We have examined the written opinion of Judge Randall and are in accord with his conclusions that there was evidence from which a sale could be inferred.

The record in this case discloses direct conflict in material matters among the various witnesses. It was essential to the sustaining of the charge that it appear that there was a sale of beer. This is directly denied by Finnerty, Williams, Mondock and Phylis Kirsch, daughter of. permittee, who was in charge of the permit premises on the night of June 30, 1951. All of these witnesses say that neither Finnerty nor Vuytich was served with any liquor. Finnerty says he was not drunk but this contention of appellant’s is conclusively disproved not only by the testimony of Officers Sweeney and Lower, but by the chemical analyses of the urine taken from Finnerty and Vuytich succeeding their arrest on the night of June 30th at the permit premises.

It is significant that two witnesses for the appellant, Mondock and Williams, say that, although Finnerty and Vuytich were not served with anything, they asked for drinks. It is inferable that if they asked for drinks and did not receive them, the reason must have been because they were intoxicated. It is significant also that Mondock denies that Cantlin was served although Cantlin’s son testified specifically that he was served with liquor. A strong case was made on the charge respecting Cantlin with the possible exception that the proof as to the type of intoxicating liquor that was sold. Although Mondock and Mrs. Ellinwood testified that Cantlin was not served with liquor on the night of August 4th, 1951, Cantlin’s son testified that they were not at the bar of the permit premises on this night.

We have heretofore discussed some of the testimony on which the witnesses for the appellant were, in our judgment, discredited by the more reliable witnesses.

The one and only close question on this record is whether or not there is any evidence which will support the finding of a sale of beer to Finnerty and Vuytich. Upon this narrow question there are circumstances which must be given probative effect, viz., the fact that the permit premises were being operated under license for which heavy fees were paid, that the business was commercial and operated for profit, Finnerty and Vuytich were separated at the bar and were not accompanied by any other person, negativing any inference that any person other than they may have paid for the beer which was in front of them. The permittee was charged with the knowledge that the same section upon which the charges against her were placed, §6064-22 GC, paragraph 5, thereof, carried this prohibition:

“No holder of a permit shall give away any beer or intoxicating liquor of any kind or description at any time in connection with his business.”

Therefore, if it appear without more, that a bartender serves a single patron with liquor an inference may be drawn that the patron paid for this liquor.

But there is more testimony bearing on the issue of the sale of the beer. Officer Lower testified that he had been in the permit premises at 7:00 p. m. on June 30, 1951; that he saw one, Bokar, who was drunk attempting to purchase a bottle of beer which request was refused; that he came in a second time and that he, Lower, then warned the person in charge, Phyllis Kirsch, against making sales to intoxicated persons; that he then arrested Bokar for intoxication, that he, with Patrolman Sweeney, returned

“to the bar at about 9:00 p. m., observed Finnerty draped over the bar, his mouth open, stuff drooling out of it; his eyes closed; tried to pick up his glass to drink it.”

“A short way down the bar was Frank Vuytich, jabbering incoherently about everything and anything. Didn’t care whom he addressed his comments to, and he was drinking his beer; that he, Lower, said to Phyllis, who was in charge, T warned you at seven o’clock about serving men in this condition. I come back two hours later, and you are still doing it,’ and she said, ‘Why, they’re not drunk.’ ”

This statement of the officer was a direct charge that she was selling or serving liquor to these two intoxicated men to which she made no denial. Officer Lower further testified in answer to this question,

“Did you observe who was waiting on Frank Vuytich in the bar that evening?”

Answer:

“Well, it was Phyllis Kirsch. Phyllis Kirsch was working behind the bar, and part of the time she would come outside of the bar. Of course she came outside the bar and had a conversation with me and Louis Johnson, and Louis admitted serving him. I asked who gave him the beer, and he said: T did.’ ”

If it be conceded that the statement attributed to Johnson, if made, is merely hearsay, it was given in the presence of the person who was in charge of the permit premises. This testimony was admitted without objection. In this situation, if hearsay, it has a certain probative value. Officer Lower says that Johnson admitted serving Vuytich; that he said he gave him beer. Officer Sweeney testified that Finnerty had a partly consumed bottle of beer in front of him and that Vuytich had a partly consumed bottle of beer in front of him at the time of the occurrences in question. Upon all of the foregoing testimony and the circumstances appearing, the record affords support for the charge that there was a sale of beer to Finnerty and Vuytich.

In the testimony of Officer Lower, in answer to the question whether there was anything else in the conversation with Phyllis Kirsch, he said:

“Well, she wanted to know why I was picking on her. Well, I told her it was still a standing complaint we had.”

Objection was made to the use of “standing complaint,” which was sustained. This is the sole reference to any standing complaint against the permit premises.

At the hearing in Common Pleas Court additional testimony was taken which related solely to the question whether or not there had been a standing complaint at Police Headquarters against the permit premises, the testimony concerning which had been stricken from the record. In other words, there was nothing which the additional testimony could rebut.

We readily concede, as did Judge Randall, that there is serious conflict in the testimony. Some of the witnesses manifestly are lying. It was the obligation of the Board and later of Judge Randall to weigh this testimony. There is reliable, probative and substantial support for all of the material elements in the charges found to be proven granting to the Board and the Common Pleas Judge their right to weigh and determine the credibility of the witnesses, nor is the judgment against the weight of the evidence.

The judgment will be affirmed.

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


author: By MATTHEWS, J.

text:
    HERMANIES, Plaintiff-Appellee, v. STANDARD OIL COMPANY, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    Nos. 7976-7978.
    Decided April 12, 1955.

      Hoover, Beall, Whitman & Eichel, Augustus Beall, Jr., John Hermanies, Cincinnati, for plaintiff-appellee.
    John A. Benjamin, Cincinnati, McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, H. Vincent E. Mitchell, Cleveland, for defendant-appellant.
   OPINION

By MATTHEWS, J.

This action arose out of a collision between the plaintiff’s passenger automobile and the defendant’s truck in the intersection of Kugler’s Mill Road and Miami Road.

The plaintiff in her petition alleged that on October 2nd, 1951, she was operating her Studebaker automobile in a northerly direction over and along Miami Road in Sycamore Township in Hamilton County, Ohio, approaching the intersection of Miami Road with Kugler’s Mill Road (sometimes called Galbraith Road) which is a road running approximately in an east-west direction as it intersects Miami Road, and that her rate of speed did not exceed twenty-five miles per hour.

The plaintiff also alleged that on- the same day the defendant “through Chester Petrie, its agent and employee who was then and there working within the scope of his employment, was operating a Sohio Gasoline truck over and along Galbraith Road aforesaid in an easterly direction” and that while plaintiff was proceeding through the intersection of said roads “the defendant suddenly and without warning, without stopping before entering the intersection, aforesaid, drove said truck with great force into the front of plaintiff’s car striking same with the right front side of defendant’s truck causing injuries to the plaintiff.”

The negligence charged against, defendant consisted in disregarding an authorized stop sign, in operating the truck in disregard of traffic conditions, without keeping a proper lookout, failing to keep the truck under proper control, in exceeding a rate of speed that was reasonable and proper, and without due regard for the safety of others.

The plaintiff set forth her physical injuries and suffering, the expense incident thereto and the damage to her automobile, totaling $68,044.83, for which she prayed judgment.

By way of amended answer the defendant admitted its corporate existence, that Galbraith Road and Miami Road existed as described and that on October 2nd, 1951, “a collision occurred between an automobile driven by Lucia E. Hermanies and defendant’s truck operated by Chester Petrie at the intersection of Miami and Galbraith Roads.” These admissions were followed by the allegation that “Defendant denies each and every other allegation of plaintiff’s petition, not hereinbefore admitted to be true, and specifically denies that the truck driven by Chester Petrie entered said intersection suddenly and without stopping. Defendant further specifically denies that plaintiff was injured to the extent and suffered damages in the amount claimed in her petition.”

The defendant by cross-petition sought judgment against the plaintiff for the damage to its truck on the ground that said damage was caused “solely, directly and proximately by the plaintiff’s negligence.”

The action went to trial on these pleadings.

In the rather lengthy opening statement of defendant’s counsel, he went into considerable detail as to the testimony of certain witnesses, particularly the testimony of Petrie, and in explanation of his ability to do so, said that Petrie’s deposition had been taken and that he would “testify in court as part of the defendant’s case.” He then proceeded to state what Petrie and his companion, whose deposition had also been taken, would testify to. He said: “The truck went into a dip, and the driver Petrie, because he was aware of the fact that this was an intersection where the vision was poor, he had discussed this matter with other drivers in the drivers’ room at The Standard Oil Company plant; and he had also been over the route previously” etc. There was no indication in the opening statement that the defendant disputed that defendant’s truck was being operated at the time in and about the defendant’s business by its agent or employee.

The trial proceeded and the plaintiff rested her case without offering any evidence on the averment that Petrie was acting for and on behalf of the defendant in the operation of the truck at the time.

No motion for judgment or for an instructed verdict was made at that time; nor was the attention of the court called to any failure of the plaintiff to offer evidence upon all the elements of her case.

Thereupon, the defendant proceeded with its defense. It offered the testimony of three physicians and rested without placing Petrie upon the stand, notwithstanding the statement of its counsel in his opening statement that he would take the stand as a part of defendant’s case.

The plaintiff offered no rebuttal evidence.

The defendant made no motion for judgment or an instructed verdict at this time; nor in any way indicated to the court that there was no issue to be submitted to the jury. On the contrary, the defendant proceeded to request that certain special charges in writing be given before argument, and, after they were disposed of, its counsel proceeded in his turn to argue the case to the jury. In his argument defendant’s counsel made no reference whatever to the absence of evidence of Petrie’s authority to represent the defendant in the operation of its truck. The court did not submit in any way the authority of Petrie as an issue in the case. Nor did it in any way instruct the jury as to the law applicable to any such issue.

The jury returned a verdict for $25,000.00. On the same day, the defendant filed a motion for judgment notwithstanding the verdict. Three grounds were alleged. The first one was that “The record does not contain any evidence of negligence on the part of the defendant, The Standard Oil Company” and it is under that broad panoply that the defendant now seeks to reverse the judgment for the plaintiff and have the court enter final judgment in its favor on the narrow ground that the authority of Petrie was not proven.

On overruling the defendant’s motion for judgment, the court entered judgment for the plaintiff for $25,000.00. Thereafter, in due time the defendant moved for a new trial, on overruling which the court ordered a remittitur of $7600.00, which the plaintiff accepted. Both parties excepted to this order and the plaintiff seeks to have the court vacate the remittitur and restore the amount remitted. We are of the opinion, however, that the plaintiff having consented to the remittitur and induced the court thereby to enter the judgment is in no position to attack the judgment. If any error was committed, she invited it.

We have set forth excerpts from the pleadings and the outline of the trial because the defendant’s counsel have urged most strongly that this judgment must be reversed and final judgment rendered for it, for the reason that there was imbedded in its answer a general denial among certain specific denials, and that this general denial placed Petrie’s authority in issue, and that there is a failure of proof on the subject, and, as the plaintiff had the burden of proving it, she must fail, and final judgment entered for the defendant. The belated filing of this motion surely cannot have the effect claimed for it. In view of the fact that this motion was filed immediately after the jury had been discharged, we think it is a fair assumption that the defendant had concluded sometime prior thereto that this alleged failure of proof existed. Indeed, there is an obscure reference in counsel’s final argument that might be attributed to such knowledge. In 39 O. Jur., at 860 and 861, we find this statemnt of the law relating to the discretion of the court to permit a case to be opened for introduction of additional evidence:

“In general, it is within the sound discretion of the trial judge to permit the plaintiff to reopen the case and introduce further evidence after he has once rested his case, and undoubtedly the trial judge may, in the interests of justice, allow the party against whom, at the conclusion of his evidence, is directed a motion for an involuntary non-suit on the merits or to direct a verdict in favor of the moving party, to reopen his case and supplement it with additional proof when such evidence, or want thereof, must control the court’s ruling on a motion for a directed verdict, particularly if he has inadvertently omitted proof of some material fact, and even though he has negligently omitted to prove some essential fact. In fact, in such cases it is quite á matter of course to permit the plaintiff to reopen his case and supply missing links in his evidence, and it may be held to be an abuse of discretion to deny a party the opportunity to offer evidence to prove a fact and at the same time to direct a verdict against him for failure to prove such fact, * * *”

By withholding the filing of this motion for judgment until after the trial had been concluded and the jury discharged the defendant would, if effect were given to it, completely deprive the plaintiff of her right to appeal to the discretion of the court to permit her to re-open her case to supply the omitted evidence. That such an appeal would have been favorably considered can hardly be doubted.

This contention of counsel presents for determination the question of whether under the pleadings, as interpreted by defendant’s conduct, the authority of Petrie to represent the defendant was an issue of fact.

The effect of the inclusion of a general denial with specific denials in an answer has been the subject of discussion and decision by many courts of “Code” states. As would naturally be expected most, but not all, of these decisions are found to be by nisi prius courts. Many states’ have provisions identical with §2309.13 R. C. (§11314 GC), by which it is enacted that “An answer shall contain: (A) A general or specific denial of each material allegation of the petition controverted by the defendant.”

It will be observed that the section provides that the answer may contain either a general or special denial, but does not provide that it may contain both. This is noticed in 31 O. Jur., 748, where it is stated: “It will be observed that the provision of the statute is that the denial must be a general ‘or’ a specific denial. The denial cannot be made at the same time general and specific, or be construed to be one or the other as may be claimed by the pleader.”

Under the heading “Answers In Code Pleading,” it is said in 1 Encyclopedia of Pleading and Practice, 785, that: “The pleader may always elect to specifically deny all the material allegations of the complaint, instead of using the general denial. But the use of a specific denial precludes a general denial. Specific and general denials in the same answer are improper.”

The case of Philip Schneider Brewing Co. v. American Ice Machine Co., 77 Fed., 138, involved the effect of the inclusion of specific denials upon a general denial in the same answer. The court held, as stated in the second paragraph of the syllabus that “Under section 56 of the Code of Colorado, the answer is required to contain a general or specific denial of each material allegation in the complaint intended to be controverted, and if it contains both a general and a specific denial, the general denial raises no issue outside of the specific denial.”

According to 31 O. Jur., 787, the Ohio rule is in accord. It is said there that: “If a general denial in an answer is coupled with a specific denial, the general denial is limited and restricted to such particulars as are pointed out in the specific denial.”

It seems clear from the authorities that under codes of civil procedure similar to the Ohio Code, the combining of a general and a specific denial is unauthorized. The cases do not seem to be in entire accord as to the effect of such joinder. In many cases — perhaps the majority — the rule is that the general denial will be disregarded and the traverse limited to the particulars covered by the specific denial. In some cases the defendant has been put to an election, and, when made, held bound by the election. School District v. Holmes, 16 Neb. 486; Dennison v. Dennison, 9 How. (N. Y.) 246; and Reed v. Hoyt, 51 N. Y. Super. Ct., 121.

We are of the opinion that where a defendant could be compelled to elect, he may voluntarily elect. And we are of the opinion that the defendant did elect to rely on its specific denials, and, for the further reason, that in the absence of an election a general denial must be limited to the particulars covered by the special denial in the same answer with which it is coupled, we find that the court did not err in concluding that the authority of Petrie was not put in issue, and in not submitting such an issue to the jury.

The defendant-appellant also urges that the court erred in refusing to give a special charge requested by it, and also erred in not submitting the issue of contributory negligence to the jury. If there was no substantial evidence of contributory negligence, the court was right in not submitting such an issue to the jury, and, of course, was right in refusing the special charge on the subject. And we have concluded that there is no substantial evidence of contributory negligence shown by the record.

As we view this record, it shows a collision between defendant’s truck and plaintiff’s automobile in an intersection through which the plaintiff had the right of way because the defendant was approaching from the left. There is not a particle of evidence that she had forfeited this right of way. There is no contradiction that the collision occurred in plaintiff’s lane of travel, which could only have taken place because defendant entered that lane of travel. The evidence is undisputed that the defendant suddenly and without warning entered this lane of travel over which plaintiff had priority, and that plaintiff had neither time nor opportunity to avoid the collision after she became aware of the presence of the defendant’s truck, and that its operator did not intend to yield the right of way to her.

Of the many cases cited and commented on by the defendant, we take notice of only one, and that is a case decided by this Court. It is the case of Schaffer v. Cincinnati Street Railway Company, 75 Oh Ap 288. The facts in that case were in marked contrast to the facts in the case at bar. In that case the defendant — not the plaintiff, as in this case— had the right of way and everything that was said in that case must be interpreted in the light of that fact. Nothing that was said in that case is inconsistent with our decision in this case.

Counsel also urges that the judgment is excessive. The court directed a remittitur, which plaintiff accepted, reducing the amount to $17,400.00. We do not believe we would be justified in disturbing this judgment on the ground that the amount is excessive.

No other error was urged upon the court by brief or oral argument.

We find no prejudicial error in the record.

For these reasons, the judgment is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.


text:
    PENNSYLVANIA RAILROAD COMPANY, Plaintiff-Appellee, v. SCIOTO-SANDUSKY CONSERVANCY DISTRICT et al, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5322.
    Decided July 18, 1955.
    Porter, Stanley, Treffinger & Platt, R. H. Treffinger, of Counsel, Columbus, for The Pennsylvania Railroad Company, plaintiff-appellee.
    Allen I. Pretzman, Columbus, for defendant-appellant, The Scioto-Sandusky Conservancy District.
   OPINION

By THE COURT.

Submitted on motion of The Pennsylvania Railroad Company, plaintiff-appellee, seeking an order dismissing the appeal filed herein by the Sharon Realty Company upon the following grounds:

(a) Said Sharon Realty Company is not now and never was a party to this action;

(b) The order of May 31, 1955, overruling the motion of The Sharon Realty Company for an order making it a party defendant in this action is not a final order; and

(c) The judgment entered in cause No. 187,191 in the Common Pleas Court of Franklin County, under date of May 31, 1955, does not, in so far as The Sharon Realty Company is concerned, determine the action or prevent a judgment adverse to The Sharon Realty Company.

The record discloses that on March 30, 1953, the Pennsylvania Railroad Company in case No. 187,191, filed its petition alleging that the levy made by the Scioto-Sandusky Conservancy District under date of August 5, 1952, was illegal, void and a nullity, for various constitutional reasons. The defendants named in this action were the Scioto-Sandusky Conservancy District, Newton A. Thatcher, the County Treasurer of Franklin County and Fred C. Dunn, the Auditor of Franklin County. The relief sought was to enjoin permanently the levy of the District, to enjoin the collection of the tax and for an order directing a refund of the taxes paid. The plaintiff brought this action for and on behalf of itself and all other taxpayers in Franklin County and the City of Columbus.

The record discloses further that on May 15, 1953, The Sharon Realty Company, as plaintiff in cause numbered 187,519, commenced an action against Newton A. Thatcher and Fred C. Dunn, the Treasurer and Auditor respectively, of Franklin County, to enjoin the collection of the Conservancy District levy of August 5; to impound the tax as paid and for a refund of the tax paid and by a supplemental petition for attorneys’ fees. This action by Sharon was brought for and on behalf of itself and all other taxpayers in Franklin County and the City of Columbus.

Although the parties plaintiff and the parties defendant in the two actions were different, the Common Pleas Court consolidated them for trial and the two cases came on for hearing and were heard together. In the Pennsylvania Railroad Company case the Court found in favor of the plaintiff and granted a permanent injunction against the levy and ordered a refund.

In the case in which the Sharon Realty Company was plaintiff the Court found that the petition failed to state a cause of action and directed the dismissal of the petition. Within a short time after the decision had been filed, The Sharon Realty Company filed a motion to be made a party defendant in case No. 187,191, the Pennsylvania Railroad Company case. This motion was overruled on May 31, 1955, and the notice of appeal is directed to this order as well as to the order and judgment in favor of the plaintiff in the Pennsylvania Railroad Company case. It is urged by the appellee that the order appealed from is not a final order and therefore the appeal should be dismissed. The motion was not accompanied by any petition or other pleadings setting out the interest, if any, which Sharon Realty might have in the case. The motion contains only the statement, “That in the event a judgment in action 187,191 based on the decision and finding of Judge James E. Kinnison, dated April 30, 1955, should become final, no effective judgment for the relief sought by plaintiff The Sharon Realty Company in action 187,519 could be granted.”

The only necessary parties defendant in the Pennsylvania Railroad Company case, No. 187,191, were the District, the County Auditor, and the County Treasurer. Secs. 3723.02 and 2723.03 R. C. The Sharon Realty Company is not a necessary party in the action by the Pennsylvania Railroad Company and there is no showing that it is a proper party. Therefore, in overruling the motion no substantial right of the Sharon Realty Company was affected, and it was not a final order. Sec. 2505.03 R. C. It has its own action pending involving the same subject matter and its rights will be determined in that action. The order in no way prevents a judgment in favor of the Sharon Realty Company in its action, or divests it of any of its rights. We find a quite similar situation in the case of Delaplane v. Delaplane, 84 Oh Ap 165, wherein this Court held in the second paragraph of the syllabus:

“An order overruling a motion to be made a party to an action after judgment wherein a substantial right of the movant was not affected is not a final order from which an appeal may be taken.”

In Hamilton v. Temple, 60 Oh Ap 94, the Court had under consideration the subject of “final orders” and at page 96 well defines the general requirements to constitute the same, saying,

“It is sufficient to say that if the order divests some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition, after the expiration of the term, it is a judgment or final order. The order must determine finally some right of the parties to be appealable to this court.”

The motion will be sustained for the reasons set forth therein.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.


text:
    REHARD et, Plaintiffs-Appellants, v. RINI, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23343.
    Decided July 11, 1955.
    Max D. Gustin, Cleveland, for plaintiffs-appellants.
    Barragate, Wedren, Gottermeyer & Eahrenbach, Cleveland, for defendant-appellee.
    (STEVENS, PJ, HUNSICKER, J, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

This case involves the law relative to restrictive covenants in a deed.

Prior to the year 1923, The Lake Shore Boulevard Co. owned a parcel of land in the then village of Euclid, Ohio, which it subdivided into a number of sublots and recorded a plat thereof. The plat contained no covenants of restriction.

On April 21, 1923, the Company-Owner transferred title to all of sublot 47 to William A. and Mary Meyer. This lot fronted on Lake Shore Boulevard (a highway running generally northeast and southwest) a distance of 152.74 feet, abutted on the intersecting East 266th Street (a street running north and south), and extended to a depth of 256.25 feet on the east side and 178.59 feet on the west side.

The deed contained the following restrictive covenant:

“The above-described premises are conveyed subject to the following reservations, limitations, restrictions and conditions, which, in favor of the within named grantor, shall be binding upon the within named grantees, their heirs, legal representatives and assigns:

“Said premises shall be used for private residence purposes only, meaning thereby a residence to be occupied by one family; not more than two such residences shall be erected upon said premises; no building shall be erected on said premises nearer than thirty-five (35) feet to the westerly line thereof nor nearer than ten (10) feet to the easterly line thereof, nor nearer than fifty (50) feet to the front and street line of Lake Road (Lake Shore Boulevard), and no residence costing or having a value of less than three thousand dollars ($3,000) at the time of its erection shall be erected upon said premises. No barn, shed, outhouse or other building except a residence, shall be placed nearer than one hundred twenty-five (125) feet to the line of Lake Road (Lake Shore Boulevard), nor nearer than one hundred (100) feet to the westerly line of said premises.”

In the years following the conveyance to the Meyers, the property was transferred to various persons and companies, and, in the year 1927, was transferred to Iona M. Neff, who divided the sublot into three parcels as noted in the foregoing diagram. At or about this time a single-family dwelling was erected on each of two of the parcels — “1” and “3” in the diagram. The other parcel, No. 2, has been and is free from buildings.

Parcel No. 1 was conveyed to various persons, and finally reached Lester M. and Afelia A. Lacey, two of the appellants in the present action. Parcel No. 3 finally passed to Harry E. and Suzanne Rehard, the other two appellants in this action. Parcel No. 2, through several conveyances, is now owned by Prances C. Rini, the appellee.

Subsequent to the time when the village of Euclid became a city, it passed an amendment to its zoning ordinances which changed the use of property 150 feet to the east of East 266th Street, on the south side of Lake Shore Boulevard, from a residence use to a business use. This property mentioned in the ordinance, applied to parcel No. 2 as shown in the diagram. The ordinance likewise applied to a strip of 150 feet on the south side of Lake Shore Boulevard and west of East 266th Street. On the latter-described land (not a part of sublot 47), several places of business were built. No business uses, however, have even been made of the zoned part of parcel No. 2 in sublot 47, and the only use ever made of sublot 47 was for the erection and occupancy of the residences on parcels No. 3 and No. 1, respectively.

In the year 1952, Rini, the owner of parcel No. 2 applied to the city of Euclid for a permit to build a commercial block on her property, to face on both Lake Shore Boulevard and East 266th Street. As heretofore noted, this property was zoned for business. .The application was denied. However, subsequently, pursuant to a hearing in the Common Pleas Court of Cuyahoga County, a mandatory injunction was issued, directing the city of Euclid to issue the permit.

Following this order of the court, the Rehards, husband and wife, owners of parcel No. 3, and the Laceys, husband and wife, owners of parcel No. 1, brought the instant action in injunction against Rini, to restrain her from erecting a business block on her property. They alleged that “uniform restrictions were imposed upon each and every, all and singular, parts of said sublot No. 47, and pursuant to a general and uniform plan for the development of said property in a strictly residential and noncommercial manner, and for the benefit of the successive owners thereof; that said restrictive provisions were at all times on public record, appearing in the plaintiffs’ and defendant’s chains of title, and were actually, or should have been, at all times known to the defendant; that, relying upon said restrictive provisions, two single high-grade residences of substantial value, now owned by plaintiffs Rehard and Lacey, respectively, have been built and now exist upon said sublot No. 47.” The petition continued by pleading that, unless an injunction was issued against the defendant, enjoining her from constructing a commercial building designed to house retail stores, she will use her property “in direct violation of the uniform plan for the development * * * of said sublot No. 47, and of the restrictions upon the use thereof imposed * * * for the purpose of insuring said development, and that the erection thereof would seriously impair the value of plaintiffs’ causing them irreparable damage, for which they have no adequate remedy at law.” The pleaders concluded by praying for an injunction.

Issues were joined by the answer of the defendant. Upon trial in the Court of Common Pleas, judgment was entered for the defendant. The plaintiffs have appealed to this court on questions of law and fact. We have entertained the appeal for trial de novo.

It appears from the agreed statement of facts that: the appellants Rehard obtained title to parcel No. 3 in 1945 from the Union Savings & Loan Co.; the deed from the grantor recited that the property was “free and clear from all incumbrances whatsoever except restrictions and conditions of record, if any, zoning ordinances, if any, and taxes and assessments, special and general, for the year 1944, and thereafter, which taxes and assessments the grantor assumes and agrees to pay.”

The appellants Lacey became the owner of parcel No. 1 in 1951 by virtue of a warranty deed from one Budinsky, who had become the owner in 1943. Budinsky’s deed from his grantor recited that the property was free and clear from all incumbrances whatsoever except restrictions and conditions of record, if any.” Budinsky’s warranty deed given to the Laceys recites somewhat similar language, as follows: “free from all incumbrances whatsoever except taxes for 1951 and thereafter, conditions, restrictions and limitations of record.”

The appellee, Rini, acquired title to parcel No. 2 in 1947 by warranty deed from the Union Savings & Loan Co. (As heretofore noted, this parcel of original sublot No. 47 has never been built upon nor used for business or residence purposes.) The deed to Rini contained the following language': “free and clear from all incumbrances whatsoever except restrictions and conditions of record, if any, zoning ordinances, if any, and taxes and assessments, special and general, for the year 1947, and thereafter.”

The question for solution, we think, may be, in simple terms, stated as follows: Can the restrictive covenant contained in the deed from the Lake Shore Boulevard Co., the original allotter, to William A. and Mary Meyer, the original purchasers of sublot No. 47, be enforced by the Laceys and the Rehards, present owners, respectively, of a portion-of the original sublot, against Frances C. Rini, the present owner of the balance of said sublot?

There has been a great amount of legal writing on the subject of restrictive covenants in deeds, and, while a cursory reading of the many cases might lead one to believe that they are in hopeless conflict, nevertheless, when the circumstances of each case are understood, there is revealed a pattern of surprising uniformity.

One class of cases permits any grantee of a lot to enforce, as against another grantee of another lot, restrictive covenant when the restrictions are so drawn that each purchaser covenants and agrees, for the benefit of every other lot owner, that he will observe the restrictions; or, when a purchaser of a lot, against whom the restrictions are sought to be enforced, has notice of a general plan of restrictions and purchases his lot with reference thereto. Such notice is shown in many cases when the recorded plat contains the general scheme or plan, or when the allotter in his deeds covenants that all sales of lots in his allotment shall be subject to the like restrictions.

The law governing this class of cases was pronounced by the writer of this opinion in the case of Lopartkovich v. Rieger, 66 Oh Ap 332. In that case the covenant was not enforcible by any grantee as against any other, for the reason that there was no mutuality of covenant or consideration which bound each, or gave to each an appropriate remedy. In other words, such covenants were not entered into by the grantees for their mutual protection and benefit.

Another class of cases is that in which the grantor exacts the covenant from his grantee, for the benefit and protection of neighboring lands which the former retains. In this class, grantees cannot enforce the covenant as against each other, although the grantor and his assigns may enforce it against either or all of the grantees of the property burdened with the covenant.

A third class embraces mutual covenants between owners of adjoining lands, in which the restrictions placed upon each produce a corresponding benefit to the other. In such eases, either party or his assigns may invoke equitable aid to restrain a violation of the covenants.

See the leading case of Korn v. Campbell, 192 N. Y. 490, 85 N. E. 687, and authorities therein cited, for the above classifications.

An analysis of the various items of conveyance of the property in question, commencing with the grantor and allotter, The Lake Shore Boulevard Co., shows no uniform plan of restrictions under the first classification above, nor do the facts bring it within the other classifications stated.

It appears that the servitude under consideration was made solely for the benefit of the original grantor and his successors, who alone might enforce it.

It is obvious that each of the present owners of the parcels carved out of the original sublot No. 47 is charged with notice of the rights which spring fi*om the covenant, because it is in their chain of title. Each of them could be liable to their common grantor upon the covenant, if such grantor instituted an action for the benefit of its remaining lands. As stated, they might be liable to their common grantor, but does it follow that they are liable to each other under the covenant?

Each of the parties traces his or her title to his or her portion of the subdivided sublot back to the original promisors (the Meyers). The parcels of land of each are subject to the burdens of the same servitude. After the land was conveyed by The Lake Shore Boulevard Co., the promisee, to William A. and Mary Meyer, the said promisors, to say that the Meyers could assert against themselves a covenant in favor of a part .of their land against another part of their land, to all of which at the same time they held title, would indeed by anomalous.

“* * * Here we have the situation where the titles of both the complainant and the defendant are traced back to the promisor. In other words, the promisor or his grantee has resubdivided the burdened land without repeating the restrictions in the resubdivision, so that the complainant and defendant each own a portion of this burdened land and are seeking to enforce the original agreement against each other. Each traces his title in his portion of the resubdivided land back to the original promisor. Thus, the lot of each is subject to the burden of the same equitable servitude. The problem then arises as to whether they are also entitled to the benefit of this same equitable servitude as against each other. * * * Any decision which permits the owner of one portion of the burdened land to enforce the servitude against the owner of another portion of the same burdened land cannot be justified under either the property or contract theories of enforcement. * * *”

II American Law of Property, Sec. 9, 34; citing Graham v. Hite, 93 Ky. 474, 20 S. W. 506; Jewell v. Lee, 14 Allen (Mass.) 145; Wright v. Pfrimmer, 99 Neb. 447, 150 N. W. 1060; Puddington v. Vielbig, 103 N. J. Eq. 39, 142 Atl. 171; Korn v. Campbell, 192 N. Y. 490, 85 N. E. 687.

If, in the instant case, new servitudes had been created at the time the original lot was subdivided and the restrictive agreements were repeated, a different question would arise. Under such circumstances, new servitudes would be involved and there would not be presented the problem of the instant case of enforcing the original servitude.

• In reaching the conclusion that the injunction should be denied, we further cite 7 Columbia Law Review 623, and 3 Tiffany on Real Property (Third Ed.), Sec. 865, at p. 500. See also: 5 Restatement of the Law of Property, Sec. 527, Comment “c,” at p. 3183.

Judgment for the appellee.

STEVENS, PJ, HUNSICKER, J, concur.