text:
    STATE ex ROSS, d. b. a. JAN ROSS MOTOR CO., Relator, v. KING, Clerk of Courts et, Respondents.
    Common Pleas Court, Franklin County.
    No. 192858.
    Decided July 12, 1955.
    Thomas W. Applegate, Columbus, for relator.
    C. William O’Neill, Atty. Geni., Fred G. Reiners, Asst. Atty. Geni., Samuel L. Devine, Pros. Atty., Earl W. Allison, Asst. Pros. Atty., Columbus, for respondents.
   OPINION

By BARTLETT, J.

JUDGMENT OF DISMISSAL IN FAVOR OF THE RESPONDENTS IS HEREBY ENTERED IN THIS MANDAMUS PROCEEDING, AT RELATOR’S COSTS.

Relator in his petition recites that on or about June 21, 1955, as a resident of this county, he presented to Roy King, Clerk of Courts in this county, a duly executed application, with proper fee, for a Certificate of Title for a 1955 Oldsmobile Deluxe Convertible, Motor No V739643, Manufacturer’s Serial No. 558MJ9934, and requested the issuance of a Certificate of Title for said motor vehicle. Relator further alleged said application was in accordance with §4505.06 R. C., and that Relator is entitled to the Certificate of Title as requested, and prays that a Writ of Mandamus issue, commanding the Respondents to accept said application and fee, and issue the Certificate of Title.

An alternative Writ of Mandamus was issued by the Court to the Respondents commandling them to act on said claim immediately on service of the writ, or show cause why they had not done so, on the 5th of July, 1955, at 1:30 P. M. before this Court.

At the time named a hearing was had in open court, with statements of counsel and sworn testimony concerning the matters at issue.

Many other facts were asserted in the petition and given in evidence at the trial. Numerous defenses were asserted by the Respondents, only one of which is necessary to be considered under the view which the Court takes of this case.

“It is well settled that the relator’s right to the relief sought must be clear. In addition to this, * * * a plain dereliction of duty must be established against such person or officer, before the writ of mandamus will be awarded.” 25 O. Jur., Mandamus, Sec. 23, p. 997;
“As has been previously pointed out, only those duties specially enjoined by law are enforceable in mandamus, and the right thereto must be certain and clear.” Sec. 30, supra;
“The doctrine of clean hands would seem to apply here, as well as in equity.” Sec. 41, supra;
“Likewise, if there is a substantial doubt as to the relator’s right, the writ will be refused.” Sec. 41, supra;
“Mandamus will not issue to compel the doing of an act which the law forbids, or to command the performance of an act which would be unauthorized or unlawful, in the absence of the writ.” Sec. 46, supra;
“Moreover, the remedy is unavailable where the relator has not complied with all the conditions precedent, as required by ordinance.” Sec. 179, supra;
“And since the compliance with the statute relating to the letting of a bid for public works is a condition precedent to the award thereof, a petition in mandamus to compel the letting of a contract to the relator must allege the compliance therewith.” Sec. 249, supra.

The application for the Certificate of Title referred to in Relator’s petition was offered in evidence. The application was signed “Jan Ross Motor Co. by Jo Zimmerman, O. M.” (Office Manager); and the Relator, the real party in interest in this case, acted as Notary Public thereon; but it was admitted by both the Relator and Miss Zimmerman, that the Relator was not present when she signed the application, and that she never had been sworn to the application, even though the Relator as the Notary Public had certified that she had so sworn thereto. In fact the evidence disclosed the Relator would sign the blank applications in advance, as Notary Public, and leave them in the possession of his Office Manager to be used as needed.

Sec, 4505.06 R. C., expressly prescribes:

“Application for a certificate of title shall be made upon a form prescribed by §4505.07 R. C., and shall be sworn to before a notary public or other officer empowered to administer oaths.” (Emphasis ours.)

The form prescribed by §4505.07 R. C., supra, provides for such an oath.

“The oaths and affirmations that were known to the English Common law, were not dispensed with by the Ohio Constitution.” 30 O. Jur. Oath and Affirmation, Sec. 1, p. 445; Art. I, Sec. 7, Ohio Constitution.

“The General Code provides that a person may be sworn in any form he deems binding on his conscience.” * * *, “and such obligation will satisfy the requirements of the law, for the reason that it binds his conscience so as to influence him to speak the truth.” Sec. 4, supra.

“It has been said that the purpose of the oath is not to call the attention of God to the witness, but the attention of the witness to God; not to call upon Him to punish the false swearer, but on the witness to remember that He will assuredly do so. By thus laying hold of the conscience of the witness and appealing to his sense of accountability, the law best insures the utterance of truth.” Sec. 2, supra; Clinton v. State, 33 Oh St 27.

“Moreover, when subjected to the sanction of an oath, and formally sworn, a person is exposed to the penalty of a prosecution for perjury if he testifies falsely and corruptly.” 39 Am. Jur. p. 495.

An order of attachment without the requisite affidavit is void. Endel v. Leibrook, 33 Oh St 254.

If the affidavit is defective, jurisdiction is not conferred over the defendant in an attachment proceeding, by the reason of his having given the required bond. Iron Co. v. Hazen, 11 C. C. (N. E.) 48, affirmed in 81 Oh St 511.

“Where the notary public never actually administered the oath, and none of the formalities required in the execution of a chattel mortgage was complied with, no cause of action can be based upon such defectively executed mortgage.” Cincinnati Finance Co. v. First Discount Corp., 9 OO 498.

“2. An affidavit not signed by the affiant in the presence of the notary and not sworn to as required by law is no affidavit, and the lien attempted to be secured by a chattel mortgage with such defectively executed affidavit is invalid.” Central Acceptance Co. v. Mundy, 29 N. P. (N. S.) 527.

“2. Where, in order to comply with 54151 RS, it is necessary to deposit a chattel mortgage, or a true copy, at the office of a county recorder, and also with the clerk of the township of the residence within the state of one of the mortgagors, the statute is not satisfied by depositing in one place the mortgage duly verified by the sworn statement of the mortgagee, and at the other a copy of the mortgage, with a copy of such statement indorsed thereon, but it is necessary that on each instrument so deposited, there should be an original sworn statement.” Cross, Trustee, v. Carstens, 49 Oh St 548.

Spear, C. J., in delivering the opinion of the court in the foregoing case on page 575 calls attention to numerous decisions of the Supreme Court of Ohio, and then states:

“These cases are instructive as showing the strictness with which the court has held parties to a compliance with the statute, and that defective instruments, or affidavits, will not be cured.”

“The statement under oath required of the mortgagee under §4154, R. S., of the amount of his claim and- that it is just and unpaid, must be made on the mortgage and authenticated by the signature of the officer administering the oath; and where this is not done the mortgage is of no effect as a lien against a creditor of the mortgagor, who has caused an execution to be levied upon the property.” Benedict v. Peters et, 58 Oh St 527.

Minshall, J., in delivering the opinion of the Ohio Supreme Court in the preceding case on page 534, says:

“The statement required by this section to be made under oath by the mortgagee on the mortgage, as to the amount of his claim and that it is just and unpaid, is vital to the spirit of the statute in the light of the mischief it was intended to prevent. It subjects the conscience of the party to the severe test of an oath as to the amount and justice of his claim to be secured by the mortgagee. * * * But where the oath is in fact taken and certified by the officer on the mortgage, the affiant may, in addition to the exposure of his fraud, be prosecuted for perjury.”

On a little reflection we can readily recognize the propriety of the holdings of the courts as to the sanctity of oath in business matters where it is required by law, and the dangers that arise in such transactions, where a practice develops of not actually requiring such oath be taken.

The so-called application of the Relator in the instant case presented to the Clerk of Courts for a Certificate of Title to a valuable motor vehicle was in law no application as such. It was signed by the Relator himself as Notary Public under circumstances which made his act illegal and fraudulent. Illegality and fraud vitiate whatever they touch and destroy the effect of that of which they are a part.

An excessive abuse has developed in the use of Notary Publie Commissions by large business concerns in the tendency to treat such commissions purely as commercial conveniences, rather than as legal safeguards of the rights of the people involved in the buying of merchandise and other articles of trade. Under the law persons serving as Notaries Public are subject to a fine and jail sentence, if they certify affidavits without giving the oath required; and if convicted, shall be removed from such office. Secs. 147.14 and 147.99 R. C.

The Prosecuting Attorney’s office are of counsel in this case, and they should lend their assistance in breaking up the practice oí mis-using Notary Public Commissions issued by the State of Ohio, to safeguard and protect the rights of its people.

It is to the credit of the Columbus Bar Association that it has a standing committee that works hard, trying to advise and acquaint Notaries Public with their duties.

Other important issues might have been decided in this case had the application in question been properly executed; but the defective application bars the use of the instant case as a means of testing those matters.

The Court enters a judgment of dismissal of this cause at relator’s costs; and an entry may be prepared accordingly with exceptions by counsel for the Relator.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    JAHRAUS, Plaintiff-Appellee, v. FRYMAN, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2275.
    Decided April 20, 1954.

      Curtner, Brenton & O’Hara, Dayton, By Clifford R. Curtner, Of Counsel, for plaintiff-appellee.
    Pickrel, Schaeffer & Ebeling, Dayton, By William H. Selva, Of Counsel, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court in favor of the plaintiff and rendered upon the verdict of a jury. The action was one for damages for personal injuries sustained by the plaintiff, Mary M. Jahraus, as the result of being struck by an automobile being driven by the defendant, Mary E. Fryman, while she was proceeding in an easterly direction in the pedestrian’s crosswalk at the intersection of Philadelphia Drive and Salem Avenue, Dayton, Ohio, The plaintiff was proceding in the crosswalk on the south side of Salem Avenue, and the defendant was driving her automobile in an easterly direction on the south side of said Salem Avenue. The record discloses that both the plaintiff and the defendant entered the intersection with the green traffic light; that while the plaintiff was proceeding in the crosswalk the defendant made a right turn into the intersection striking the plaintiff and her daughter, causing the injuries which are the subject of this action. The accident occurred about 9:00 P M. It was raining, the defendant’s bright lights were on the low beam, and the windshield wiper was in operation.

The defendant was charged with the following acts of negligence, all of which were in issue:

(1) Defendant failed to yield the right of way to plaintiff, then and there on said crosswalk.

(2) Defendant was not keeping a lookout for plaintiff on said crosswalk, as she approached in a southerly direction across the same.

(3) That said defendant was operating her automobile at a rate of speed in making said turn, to-wit: 35 M. P. H.

(4) Defendant failed to give any warning of her approach as she turned right off Salem Avenue.

The Court in its general charge told the jury that before the plaintiff could recover, one of the essential elements of proof was that the defendant was negligent. It is urged by the defendant that this instruction permitted the jury to return a verdict if they found any negligence on the part of the defendant proximately causing the defendant’s injuries whether such negligence was charged in the second amended petition or not. This charge, however, must be considered in the light of the whole charge given, including the special charges before argument, and the jury was so instructed, the Court saying in its opening remarks to the jury before reading the special instructions:

“* * * These instructions are in my opinion correct statements of law applicable to some part of the evidence in the case, and are to be considered by you in conjunction with the general charge, which I shall give you at the conclusion of counsel’s arguments or this afternoon as I indicated. You are to consider all these special instructions in connection with that general charge, and consider the general charge in connection with these, and consider all these in connection with each other. These are written instructions and will accompany you in your jury room. The general charge I give you will not be written. It will be oral. Nevertheless, despite the fact that the general charge is oral, and these special charges are written, you will consider them all together and in harmony with each other.”

And in Special Charge No. 7 it will be found that the Court limited the acts of negligence for which a recovery may be had to those charged in the second amended petition. Special Charge No. 7 reads as follows:

“I charge you that before the plaintiff can recover in this case the burden is upon the plaintiff to prove the essential allegations contained in her second amended petition by a preponderance of the evidence. By a preponderance of the evidence is meant the greater weight of the evidence, and if, upon consideration of all of the evidence in this case, you find that the plaintiff has failed to prove her case by preponderance of the evidence, then your verdict must be for the defendant.”

And at the close of its general charge the Court again cautioned the jury, stating:

“As I stated to you when I read the special instructions this morning, the Court has not embodied all the law applicable to this case in any one of these instructions, nor in any one or all of the special written instructions read to you and which you will have with you in your jury room. And in considering any one charge or instruction, you must consider it in the light of and in harmony with every other instruction given, and in so considering and so construing apply the principles enunciated to all the evidence admitted upon the trial.”

It is our conclusion that the Court did not err in this instruction to the jury.

It is next urged that the court erred in charging the jury on the assured clear distance ahead statute for the reason that this issue was neither charged in the pleading nor raised in the evidence. We cannot agree with this conclusion.

The third specification of negligence charges the defendant was operating her automobile in making the turn in excess of 35 miles per hour. There is also evidence in the record concerning the speed at which the defendant was traveling, and all of which was admitted without objection. The court’s charge on the question was correct, complete and not prejudicial See Glasco v. Mendleman, 143 Oh St 649; Schwab v. Keeler, 81 Oh Ap 291. We find no error in the order of the court overruling the defendant’s motion to withdraw the second and third specifications of negligence from the consideration of the jury. It will be noted that the second specification charges that the defendant failed to keep a loekout for the plaintiff on the crosswalk. We think there is sufficient evidence in the record to support this charge. The defendant testified that she saw the plaintiff and her daughter standing at the curb waiting for the red light to change to green at the same time that she was stopped. She tesified further that she did not see them again until she was from three to five feet from them and unable to stop, and that they were then not over six feet from the curb. The evidence offered by the plaintiff’s witnesses, however, placed the plaintiff at approximately the middle of the intersection at the time she was struck Clearly a factual question was presented for the jury to determine, whether or not the defendant had maintained a proper lookout. As we stated supra, the court properly charged upon the assured clear distance ahead statute which was given under the third specification of negligence. The court properly refused to strike this specification from the record.

It is next urged that the court erred in giving Special Charge No. 4, which reads as follows:

“I charge you as a matter of law that Mary Jahraus in crossing Philadelphia Drive on the crosswalk, in the absence of knowledge to the contrary, had a right to expect and assume that the defendant Mary Fryman, would obey the law and yield to her the right of way.”

This charge is substantially the same.as was approved in Stout v. Wagner, 87 Oh Ap 43, except in that charge the court instructed the jury that the law was applicable in case it found that the plaintiff had the right of way. The charge as given here was correct for the reason that the plaintiff did have the right of way. The court instructed the jury that she was lawfully in the crosswalk with the green light in her favor at the time she was struck. Sec. 6307-45 GC, gives the right of way to the pedestrian lawfully crossing in any crosswalk. Therefore the plaintiff had the right of way and the charge was correct in the light of the facts presented.

At the conclusion of the court’s charge the defendant requested the court to charge further upon the necessity of the exercise of ordinary care, that the plaintiff must use her sense of sight and ascertain that which a reasonably -prudent person would ascertain under the circumstances. The court refused to so charge for the reason it was of the opinion that the requested additional charge had been sufficiently covered in the instructions given. We find that this subject was included in Special Instruction No. 8, which was given to the jury before argument and reads as follows:

“I charge you that whether the plaintiff was on a croswalk or not, she was at all times under the legal duty to exercise ordinary care for her safety while crossing the street, and that duty would require the plaintiff to use reasonably her sight for her own safety. If you find that plaintiff failed to use ordinary care for her own safety and- such failure contributed in the slightest degree as a proximate cause of the accident then your verdict must be for the defendant.”

The court properly refused this additional instruction for the reason that it might tend to overemphasize this subject.

Finally, it is urged that the court erred in refusing to withdraw a juror because of alleged misconduct on the part of counsel for the prevailing party The record reveals that counsel for plaintiff in examining a certain witness referred to a question asked by counsel for defendant as a “trick” question. Objection to the comment by counsel was sustained, and the same was ordered stricken from the record. Again in his argument to the jury, counsel for the plaintiff referred to certain special instructions offered by the defendant as “trick” charges. The defendant objected to the comment of counsel and also to his informing the jury who prepared the special instructions. The Court ruled that the jury should not be advised as to who requested an instruction, for the reason that it makes no difference. The court further stated that when an instruction is requested, if it is a true statement of law applicable to the evidence in the case, that it would be given regardless of who requested it. The court then overruled the motion to withdraw a juror. We are of the opinion that counsel for the plaintiff exceeded the bounds of propriety in the various statements complained of; but even so, do these statements-require a reversal in the absence of a showing of any harmful effects from the same? There is no claim that the verdict was rendered under passion or prejudice, or that the damages are excessive. A reviewing court will not reverse for misconduct of counsel unless it clearly appears that it was of such a character and so persistent as to prevent a fair trial of the cause. 4 O. Jur. (2d) 204, Sec. 959.

In the case of Ohio & Western Pennsylvania Dock Co. v. Trapnell, 88 Oh St 516, the court says at page 521:

“Remarks of this kind are wholly improper in the trial of a case and it is the duty of the trial court to see that they are not made, or at least not persisted in, but something must be left to the discretion of a trial court, otherwise we would never reach an end to litigation, and a reviewing court ought not to reverse unless it clearly appears that such misconduct was of such a character and so persistent as to prevent a fair trial of the cause.”

The control over the latitude allowed a counsel in the argument of a case requires the exercise of a sound discretion and unless there is an abuse thereof the action of the trial court will not be disturbed. We find no such abuse in the facts presented in this case.

Finding no prejudicial error in the record, and being of the opinion that substantial justice has been done, the judgment will be affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By GRIFFITH, J:

text:
    FLOYD, Plaintiff-Appellee, v. CLEVELAND (CITY) (Cleveland Transit System), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23315.
    Decided January 12, 1955.

      Chester K. Gillespie, Clarence L. Chavers, Cleveland, for plaintiffappellee.
    Robert F. Mooney, Robert Fletcher, Cleveland, for defendant-appellant.
    (DOYLE, J, HUNSICKER, J, of 9th District: GRIFFITH, J, of 7th District sitting by designation.)
   OPINION

By GRIFFITH, J:

Plaintiff, while riding on a trackless trolley operated by the defendant, was requested by the operator to restrain an epileptic during a seizure so as to avoid injury to other passengers on the trolley.

Plaintiff’s assailant entered the trackless trolley and, after a brief conversation with the trolley operator, fell to the floor in an epileptic attack. The plaintiff responded to the request of the operator after attempts to revive the man were unsuccessful and went to help the man who was lying there on the floor.

While the plaintiff was ministering to the epileptic, the bus driver said, “Well, I believe I’ll call the ambulance,” and then departed from the bus.

In the absence of the trolley operator, the man who had collapsed regained consciousness, rose to his feet and asked the plaintiff, “What in hell are you doing to me?” and then struck the plaintiff a powerful blow in the face, breaking his nose, and then he jumped from the trolley bus and ran up the street. The testimony indicates clearly that the plaintiff’s assailant was just another passenger on the defendant trolley.

This is not an action for the tort of a passenger upon the plaintiff, but is an action in negligence against the operator of the trolley for failure of the carrier to exercise the highest degree of care for the protection of the plaintiff consistent with the practical operation of the bus.

In 10 American Jurisprudence at page 256, Section 1439 we find the following:

“A carrier is liable for injuries inflicted upon one of its passengers through the negligence or wilfulness of a fellow passenger or a stranger when, by the exercise of proper care on its part, the act of violence might have been foreseen and prevented. In general, a common carrier is held to a high degree of care and vigilence to protect its passengers from the acts of fellow passengers or strangers, and is liable for any injuries sustained as a result of its negligence in this respect. The employees of a carrier are regarded as invested with all the powers of a police officer for the purpose of protecting passengers from assault by fellow passengers or stangers. The duty of a carrier to protect passengers from acts of fellow passengers, as well as the extent of its liability for failure to adequately discharge this duty, is considerably less in England than in the United States. * * *”

At page 259, Section 1441, we find the following:

“A carrier is liable for acts of misconduct or improper conduct on the part of its passengers or strangers resulting in injury to a fellow passenger only in the event that the employees of the carrier knew or, in the exercise of due care, should have known of the imminency of the tort and failed to prevent its occurence after a sufficient opportunity to do so. It is not essential that the employee of the carrier possess actual knowledge to the effect that improper conduct is about to take place, if, with the exercise of proper care, he could have learned of circumstances indicating the probability of the tortious conduct or behavior * *

And at page 273, Section 1466, we find the following:

“A common carrier is not liable for an assault by a stranger on a passenger, if it could not have anticipated and prevented the assault by exercise of the proper degree of care and prudence. A carrier will be held liable, however, for an assault on a passenger by a stranger, if it could have been anticipated and prevented by the exercise of reasonable care and diligence ”

Did the bus driver know from all the circumstances that injury to this plaintiff passenger was threatened or impending? Should he have anticipated the assault? The epileptic had fallen and was lying prostrate on the floor of the bus. The operator called upon the plaintiff to assist him in the emergency. Did the operator leave the plaintiff in a known perilous condition? He said, “I’ll go call the ambulance.” He left no one in charge of the bus whomsoever except this plaintiff.

In the exercise of proper care on the part of the operator of tlje bus should this assault not have been foreseen and prevented?

The operator was invested with all the powers of a police officer for the purpose of protecting passengers on his bus, and for the purpose of protecting passengers from the assault by fellow passengers or strangers.

The case of Paal v. Cleveland Railway Company, 11 Oh Ap 462, has for its first syllabus the following:

“The liability of a carrier for injuries inflicted upon a passenger by reason of an unprovoked assault by a fellow passenger, depends upon the presence or absence of evidence showing that the employee of the carrier knew, or by the exercise of due care should have known, from all the facts and circumstances, that injury to the passenger was threatened or impending; and in the absence of such evidence, it is not error for a trial court to enter nonsuit for the carrier at the conclusion of plaintiff’s evidence.”

On pages 464 and 465 of the opinion, we find the following:

“The rule governing such a situation seems to be that a carrier of passengers for hire is liable or not liable for an injury inflicted upon a passenger by reason of a third person making an unprovoked assault upon him dependent upon the presence or absence of evidence showing that the employee of the carrier knew, or by the exercise of due care should have known from all facts and circumstances in the case, that injury to the passenger was threatened or impending. The facts and circumstances of the case must disclose a situation such that the employees in the exercise of the highest degree of care should have anticipated the impending assault.”

The trial court found for the plaintiff, and we cannot say that the conclusion of the court is manifestly against the weight of the evidence. For these reasons, the judgment is affirmed.

Exceptions noted. Order see journal.

DOYLE, PJ, HUNSICKER, J, concur.


author: By HORNBECK, PJ.

text:
    MOSS AND EMMCO INSURANCE COMPANY, etc., Plaintiffs-Appellees, v. LORDIER, Defendant-Appellant. LORDIER, Plaintiff-Appellant, v. MOSS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4675, 4676.
    Decided October 2, 1952.
    Wiles Si Doucher, Jack R. Alton, of Counsel, Columbus, for plaintiffsappellees, Oradie Moss and Emmco Insurance Company, and for defendantappellee, Lena Mae Moss.
    Harry B. Schaeffer and Frederick L. Orum, Columbus, for defendant-appellant and plaintiff-appellant, Raymond E. Lordier.
   OPINION

By HORNBECK, PJ.

In case No, 4675 the plaintiffs were Oradie Moss and the Insurance Company which, by reason of being the insurer on a policy of insurance on the automobile of plaintiff, Oradie Moss, had paid a claim growing out of the collision upon which the cause of action was predicated, had oeen subrogated to the rights of the plaintiff, Moss, to the extent that it had made payment to him.

The collision upon which both actions were predicated occurred on November 25, 1949, at the intersection of Buckingham Street and Jefferson Avenue, Columbus. The wife of plaintiff, Moss, was driving his automobile in an easterly direction on Buckingham Street. Lordier was driving his car in a southerly direction on Jefferson Avenue. The negligence charged in Case No. 4675 in which the owner of the car was plaintiff, was failure to yield the right-of-way: to keep a motor vehicle under control: to keep a lookout for motor vehicles moving in an easterly direction on Buckingham Street and in particular, the motor vehicle of Oradie Moss and in entering the intersection without stopping as required by law. The answer was substantially a general denial of any negligence and a denial of damages to the extent claimed by plaintiff.

Case No. 4686 was an action for damages by Lordier against Lena Mae Moss, the driver of the Moss car. The negligence charged against the defendant in this case was failure to exercise ordinary care; to keep the automobile in proper control; to divert its course to avoid striking the plaintiff’s automobile and failure to reduce speed upon entering the. intersection.

The cases were submitted to a Municipal Judge without a jury who found for the plaintiffs in Case No. 4675 and for the defendant, Lena Mae Moss, in Case No. 4676.

The errors assigned are that the findings and judgments are against the manifest weight of the evidence; that they should have been for Lordier in both cases; that they are contrary to law.

Appellant relies in this Court particulary upon two propositions: First, that in Case No. 4675 the plaintiffs offered no proof that the expenditures for repairs for the Moss automobile following the collision set out in the petition were incurred by reason of the collision. It is stipulated that the total sum expended by the plaintiff was $554.81 for repairs made to the car, but it is insisted that there is no showing that the repairs that were 'made were necessitated by the collision upon which plaintiff’s cause of action, is predicated. It is manifest that such proof is essential to plaintiff’s recovery.

During the progress of the trial the parties made a stipulation, parts of which follow:

“Plaintiff, Oradie Moss, was, on the 25th day of November, 1949, the registered title owner of a 1946 Buick sedan and that on said date he carried a policy of insurance, $100 deductible collision insurance with the Emmco Insurance Company. And by reason of an accident with the defendant and by reason of its policy, the Emmco Insurance Company paid Oradie Moss four hundred and fifty-four dollars, eighty-one cents, and in return for said payment took a subrogation agreement, subrogating the rights of Oradie Moss to the plaintiff insurance company to that extent.”

It is further stipulated and agreed that Oradie Moss

“retained a one hundred dollar interest in the claim which he paid on the bill. And it is further stipulated that the reasonable cost of the repairs of the vehicle was five hundred and fifty-four dollars and eighty-one cents.” (Emphasis ours.)

We believe that this stipulation, as emphasized and read in its entirety, is sufficient to permit the finding that the insurance was paid upon the collision which is the basis of plaintiffs’ suit and that the expenditures were for repairs made as a result of that collision.

The next contention of the appellant is that although the driver of the Moss car would normally have the right-of-way as she entered and crossed the intersection of Buckingham Street and Jefferson Avenue it lost that preferential right because not approaching in a lawful manner.

There is a separate findings of fact in this case. Thus every reasonable intendment must be indulged to support the findings of the trial judge essential to the judgment. So reading this record, we cannot say that the trial court erred in finding against the contention of the defendant, Lordier, on this phase of the case.

There was a sharp conflict in the testimony. The plaintiff’s driver insisted that in view of the close proximity of the place on Buckingham where defendant’s automobile entered this street and the speed with which he was moving when her car was struck, it was evident that he did not stop at the intersection. To the contrary, defendant and his wife both testified that he did so stop. He also says that he saw plaintiff’s car approaching at a distance of 250 or 300 feet from the intersection. He states that his car was struck by plaintiff’s car on the right side in the front thereof. Plaintiff’s driver testifies that defendant’s car struck her car on the front left side opposite her as she had gotten beyond the center line of Jefferson Avenue over which she was passing. She says that she did not see defendant’s car until about the time that she was struck and defendant states that although he saw plaintiff’s car at the distance heretofore stated, he did not again see it until about the time he collided.

The trial judge had to reconcile all of these conflicting statements. Manifestly, someone was testifying erroneously as to speed and physical conditions prior to and at the time of the collision. The Court must have concluded that' there was insufficient proof to require the conclusion that plaintiff’s driver lost her right-of-way. We cannot hold that the record will not support such conclusion. In our judgment, the trial Court did not misinterpret the case of Morris v. Bloomgren, 127 Oh St 147, and particularly the 5th syl. thereof.

The appellees have support for the holding of the trial judge in the cases which they cite. Willard v. Fast, 75 Oh Ap 225. 1st Syl, and Rubin v. Wasser, No. 2129, Franklin, 61 Abs 76.

We find no error assigned in Case No. 4675 established and it follows that there was no error in the judgment in Case No. 4676 against the plaintiff, Lordier.

The judgments must be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By GESSAMAN, J.

text:
    GILMORE, Plaintiff, v. AMERICAN GAS MACHINE COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 181,216.
    Decided August 13, 1952.

      H. C. Allread, Columbus, for plaintiff.
    Bricker, Marburger, Evatt and Barton, Columbus, for defendant.
   OPINION

By GESSAMAN, J.

A jury having been waived, this case is submitted to the Court on the pleadings, the evidence and the briefs of counsel.

On August 26, 1941, a written contract was executed by the parties whereby the defendant agreed to manufacture certain oil burners and the plaintiff was to have the exclusive selling rights during the life of the contract which was to terminate on June 20, 1956. The contract was subsequently modified on two occasions but these modifications dealt only with the amounts to be paid to plaintiff for burners sold.

On September 14, 1950, a letter was sent to plaintiff by F. A. Trow, president of the defendant company, the body of which letter reads as follows:

“This is to advise you that we (Queen Stove Works, Inc.) have acquired control of American Gas Machine Company of Albert Lea, Minnesota.
I understand that you have some sort of a working agreement with said company whereby they paid you a certain commission on sales made to outside concerns for burners to be fabricated by them.
This letter is to advise you that we are not interested in continuing this connection with you so you will please consider such an arrangement cancelled as of this date.”

Treating this letter as a renunciation of the contract, plaintiff filed his petition herein on October 2, 1950. Plaintiff seeks to recover the profits which he claims he would have made under the contract for the balance of the term.

For its first defense, defendant entered a general denial. For its second defense it alleged that it was willing to abide by the terms of the contract. For his reply, plaintiff, in substance, alleges that defendant did not indicate its willingness to so abide by the terms of the contract until after he had filed suit and had otherwise changed his position.

At the conlusion of the trial, the Court expresssed some doubt as to whether the defendant had unqualifiedly renounced and repudiated the contract. Upon further study the Court is of the opinion that the letter of September 14, 1950, was a renunciation of the contract in question and could be treated by the plaintiff as such and constituting an anticipatory breach thereof. The rule is well stated in Builders Supply and Fuel Company v. Huntington and Fink Co., 1 Abs 251 at p. 252:

“A renunciation to be treated as a breach by the opposite party must be clear and unequivocal so that the party will be informed that he need not expect anything further upon the contract from the other side.
To make a renunciation as a breach, the other party must treat it as a breach and act upon it.”
(Court of Appeals, Cuyahoga County.)
The plaintiff did act upon the renunciation and thereby treated it as a breach. The president of the defendant company evidently realized that the letter of September 14, 1950, could be considered as a renunciation of the contract for on October 27, 1950, on his authorization, defendant’s attorneys wrote to plaintiff attempting to rescind and revoke the letter of September 14, 1950, “so that your relationship with American Gas Machine Company and otherwise, may be restored to the status existing prior to writing the above letter of September 14, 1950.”

One reason for the Court’s earlier doubt as to whether the defendant company had, in fact, renounced the contract, was a letter of September 20, 1950 (PI. Ex. 10, p. 128) from Mr. Burt Knatvold of the defendant company to plaintiff, but there is no evidence that Mr. Knatvold knew about the letter of September 14, 1950, which was written by Mr. Trow, the president. Furthermore, although Mr. Knatvold’s letter refers to plaintiff’s letter of September 18, 1950, the evidence later disclosed that Mr. Trow’s letter of September 14, was not received by plaintiff until after September 19. The Court, therefore, has concluded that the letters dated September 18 and September 20 in no way affect the action taken by the President of the defendant company on September 14, 1950.

It is urged by counsel for defendant that when he wrote the letter of September 14, 1950, Mr. Trow did not know that a written contract existed between plaintiff and defendant. The fact is, however, that Mr. Trow made it clear that “this connection” or this “arrangement” was “can-celled as of this date”. There was only one “connection” or “arrangement” that plaintiff had with the defendant and it follows, therefore, that whatever it was Mr. Trow “cancelled” it as of September 14, 1950.

We conclude, therefore, that the action of the defendant was clear and unequivocal, that it was a renunciation of the contract and that it was treated as such and as an anticipatory breach by plaintiff and that he acted thereon by the filing of this suit on October 2, 1950.

Counsel for defendant contend that, if the action of Mr. Trow be considered as a renunciation, it was withdrawn in time.

In finding the answer to this contention we must consider the rights of plaintiff after he received Mr. Trow’s letter and on this subject we find an excellent statement in Central Trust Company v. Chicago Auditorium Assn., 240 U. S. 581, at p. 589 of the opinion:

“It is no longer open to question in this Court that, as a rule, where a party bound by an executory contract repudiates his obligations or disables himself from performance of them before the time of performance, the promisee has the option to treat the contract as ended, so far as further performance is concerned, and maintain an action at once for the damages occasioned by the anticipatory breach. * * *
There is no doubt that the same rule must be applied where a similar repudiation or disablement occurs during performance.”

As we have already pointed out, plaintiff did act at once — or within a few days — by filing suit and by making certain deals with other companies. Under the rule, now well established, it appears that the filing of this suit was sufficient to render it impossible for defendant to retract its renunciation.

In 4 Corbin on Contracts, 930, at Sec. 980, we find this rule:

“One who has committed an anticipatory breach by a manifestation of an intention not to perform his contract has power to nullify its effect as a breach by notifying the promisee that he has changed his wrongful intention and will perform the contract. This power of retraction will cease to exist as soon as the promisee has materially changed his position in reliance on the repudiation. The bringing of a suit by the promisee for the anticipatory breach is one sort of reliance making retraction impossible.”

Also in 1 Restatement of the Law of Contracts 481 at Sec. 319:

“The effect of repudiation is nullified (a) where statements constituting such repudiation are withdrawn by information to that effect given by the repudiator to the injured party before he has brought an action on the breach or has otheriwse materially changed his position in reliance on them; * * *”

There may be some question as to whether the deals made by the plaintiff after he received Mr. Trow’s letter materially changed his position but the fact remains that he did file suit. It follows, therefore, that the attempted retraction after suit was filed was ineffectual. What, then, may plaintiff recover for this breach of contract?

The only evidence presented on the question of damages was that of the plaintiff. He testified that, in his opinion, he could have sold from eight to ten thousand burners per year for the remainder of the life of the contract. This testimony is not born out by other evidence in the case. At pp. 77 and 78 of the record we find that plaintiff’s sales in previous years were as follows:

These figures show a gradual decline in annual sales to a point well below the 9000 (average) estimate of plaintiff. Furthermore, plaintiff testified (p. 80) that The Lennox Furnace Company was “purchasing the largest number of these burners” and the record further discloses at pp. 120 and 1-25 that late in 1950 Lennox discontinued the use of the burners in question due to a change in the oil that had to be used in them or that was available for use in them. It is true that plaintiff testified (p. 96) that he “probably would have saved the Lennox account” That, of course, is speculative. The result is that the plaintiff’s testimony as to the number of burners he could have sold during the remainder of the term of the contract is a pure conclusion, not substantiated by the other evidence in the case. Furthermore, it can be considered only as pure speculation.

A similar situation was presented to the Court of Appeals of this district in the case of Advertiser’s Exchange, Inc., v. Bleich, 40 Abs 212 (1943). The following from p. 216 of the opinion discloses the similarity of the evidence:

“One witness, Alpha M. Bond, testified that she was the treasurer of plaintiff company and that as such she received and passed on the contract when mailed in to the company by their traveling representative and immediately thereafter notified the defendant that the contract was accepted. She did testify that the damages incurred by the plaintiff amounted to the full contract price of $182.00. This can be considered nothing more than a conclusion and the evidence does not sustain such a conclusion.
Counsel for plaintiff-appellee argues that profits would be an element to take into consideration of damages and in support of this argument cites 15 Am. Jur. p. 561, par. 151. The citation aptly supports the argument but the difficulty is that the plaintiff presented no evidence from which the question of profit could be determined ”

It is the Court’s opinion that the same situation is here presented.

It is firmly established that the Court may not speculate in allowing damages for breach of a contract nor may it award damages based solely on evidence that is speculative. In other words profits or speculative damages are not recoverable. See Champion ice Manufacturing and Cold Storage Company v. Pennsylvania Iron Works Co., 68 Oh St 229 at p. 235. At the same page of that case we find this language:

“The recovery of lost profits in the present case would involve the local condition of the markets, peculiarity of the ice company’s business, its ability to substitute other machinery for the disabled machine, and other elements of injury not arising naturally from the breach of the contract nor presumably within the contemplation of the parties as the result of the breach.”

Many of those factors are applicable to the claim in the present case and, therefore, place the claim for lost profits herein, in the realm of speculation. For a thorough discussion of the same subject, see 13 O. Jur. pp. 151-161.

The damages claimed herein are not only speculative but plaintiff has, by the same token, failed to sustain the burden of proving at least one of the elements necessary to recovery. In Allen, Heaton and McDonald, Inc., v. Castle Farm Amusement Co., 151 Oh St 522, the Court held as follows in Syl. 3:

“In such a case (breach of contract), plaintiff has the burden of alleging and proving not only (a) what he would have received under the contract from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom). Unless he proves both of those facts, he cannot recover as damages the profits he would have earned from full performance of the contract.”

For the reasons already discussed, it is our opinion that plaintiff has not proved what he would have received under the contract from the performance. so prevented.

There is some definite evidence in the record, as to profits due plaintiff over a period of about five months in the latter part of 1950 and the first two months of 1951. Checks totalling $1674.30 were sent to plaintiff by defendant but returned by plaintiff. (Record p. 59.) That is the only amount established by the evidence as being due plaintiff under the contract.

The Court therefore finds that plaintiff recover from defendant the sum of $1674.30, together with his costs. Entry may be drawn accordingly.


author: By HORNBECK, J.:

text:
    ELLIS, Plaintiff-Appellant, v. MOORE, Jr. et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2252.
    Decided December 2, 1953.
    Kusworm & Kusworm, Dayton, for plaintiff-appellant.
    Pickrel, Schaeffer & Ebeling, Chamberlain & Chamberlain. Dayton, for defendants-appellees.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law from a judgment entered in favor of the defendants notwithstanding a verdict of a jury in behalf of the plaintiff.

Three errors are assigned..

1. Refusal to accept evidence offered by the plaintiff.

2. Admission of testimony by the defendant over the objection of plaintiff.

3. Sustaining the motion for judgment notwithstanding the verdict.

We may not consider the first and second assignments of error. The motion tests the probative sufficiency of the evidence received. Sec. 11601 GC. These assignments are properly for consideration on a motion for a new trial. Jolley v. Martin Brothers Box Company, 158 Oh St 417, 430.

The third assignment presents the question: Was there substantial evidence of the negliggence charged aggainst the defendant proximately causing plaintiff’s injuries? If so, the motion was improperly sustained. If not, it was properly sustained. Wilkenson v. Erskine and Son, Inc., 145 Oh St 218.

The averment, of the amended petition of plaintiff is that she was riding a bicycle northwardly on Lennox Drive when she was struck by a Lincoln automobile being driven westwardly by the defendant, Paul Moore. The plaintiff, at the time of the collision, was nine years of age; the defendant sixteen years of age. Two allegations of negligence were alleged: (1) “That the defendant was driving at an excessive rate of speed as he approached the intersection, to-wit; at a speed of fifty-five miles per hour.”

(2) “That defendant failed to keep a lookout for plaintiff as he approached the intersection where the accident occurred.”

The facts developed in the record are that the plaintiff and a girl friend were riding their bicycles on Lennox Drive approaching Winding Way. Lennox Drive was a thoroughfare extending north and south and Winding Way, at and near the intersection, extends east and west. The intersection is in a residential section south of Oakwood in Montgomery County, Ohio. The plaintiff prior to the accident.had been riding northwardly on Lennox Drive, intending to enter Winding Way to move to the east. Her amended petition avers that she was riding northwardly. There is some testimony that at the time of the collision she was riding eastwardly. The defendant was driving the Lincoln automobile westwardly on Winding Way.

The prima facie lawful speed at the intersection where the collision occurred was fifty miles per hour. There is no proof whatever of a rate of speed as great as 50 miles per hour. No witness for the plaintiff undertook to fix the rate of speed in miles per hour upon observation of the movement of the car, but a State Patrolman, testifying from records, said that the skid marks on the road at the scene of the accident indicated that the defendant, prior to the collision, had been moving at a speed of 30 to 35 miles per hour. This conclusion was reached because the skid marks from the point of the collision extended eastwardly 49 feet 8 inches. This testimony was corroborative of the defendant, who said that when he saw the plaintiff emerging from the intersection he was driving from 30 to 32 miles per hour. Plaintiff and her girl friend said that defendant’s automobile was moving toward the intersection very fast. There is testimony that Winding Way as it approached the intersection was on a down grade, but the length or extent of the grade does not appear.

Defendant, upon cross-examination, stated that he was looking straight ahead as he approached the intersection, and that when he first saw plaintiff she had ridden out into the intersection. The plaintiff testified that she stopped on Lennox Drive, but that she did not see the defendant until she entered the intersection.

It is contended that the failure of the defendant to look to the left as he approached the intersection was evidence of negligence. However, there is no proof from which the jury could determine the distance from the intersection at which point he could see the plaintiff if she was in Lennox Drive. Plaintiff did not see the defendant, and there is nothing to indicate that he could have seen her had he looked if he was under any obligation to look to his left and into the intersection.

Plaintiff urges that there is testimony from which an inference can be drawn that the defendant, although not exceeding the prima facie speed limit as he approached the intersection, was driving at an excessive rate of speed. This could be determined only if some condition of traffic, state of the weather, or other facts put the obligation upon defendant to drive slower than the legal, rate of speed fixed by the statute. No such unusual physical conditions appear. There is some testimony that there was a bush on the southeast corner of the intersection, but to what extent \t would impair the vision of plaintiff or defendant is problematical.

The most significant fact in this record is that the defendant, as he approached the intersection, had the right of way over the plaintiff, who was to his left. His rights and obligation in this situation are determined by Morris v. Bloomgren, 127 Oh St 147, the first syllabus of which holds that he had the absolute right of way, qualified only by the requirement that he proceed in a lawful manner. And by the fifth syllabus of this case he had the right to assume that the plaintiff approaching from his left would obey the law and yield the right of way to him until such time as he observed her to be in a perilous situation, when he would have lost the benefit of his absolute right of way. There is no showing in this record from which it may be held that the defendant lost his right of way. There is no averment that he was not in his proper lane of traffic prior to or at the time of the collision.

Upon a careful consideration of the record in this case in its entirety, we cannot hold that the trial judge erred in finding that the plaintiff had failed to make a case to go to the jury on either of the specifications of negligence and in entering the judgment for the defendant notwithstanding the verdict.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By PHILLIPS, J.

text:
    WASHINGTON, Plaintiff-Appellee, v. REPUBLIC STEEL CORPORATION, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3639.
    Decided April 2, 1954.
    Andrew L. Johnson, Youngstown, for plaintiff-appellee.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Each of the parties to this appeal moved for verdicts to be directed in their favors at the close of all the evidence introduced in the court of common pleas in plaintiff’s appeal thereto from a finding of the Industrial Commission of Ohio denying upon rehearing her claim of right to participate in the Workmen’s Compensation Fund of Ohio because of the death of George Washington, to whom she was married, with whom she was living as husband and wife, and upon whom she was wholly dependent for support when he was seen last alive seated on a larry car, holding his head on his hands, about seventy feet from a skip bucket over one of defendant’s blast furnaces, where George Washington was employed, about 8:30 o’clock P. M. on February 4, 1949.

The trial judge sustained plaintiff’s motion, granted defendant corporation, a self-insurer under the Ohio Workmen’s Compensation Act, leave to withdraw its motion, of which it did not avail itself, dismissed the jury, heard arguments of counsel, overruled defendant’s motion for the “verdict to be entered in its favor notwithstanding” the written verdict of the trial judge returned against it and overruled its motion for a new trial, and subsequently entered judgment accordingly.

Defendant appealed to this court on questions of law from the judgment of the trial judge.

In her petition filed in the court of common pleas plaintiff alleged inter alia as follows:—

“Plaintiff further says that on the 4th day of February, 1949, her said husband, George Washington, deceased, was an employee of said defendant corporation under a contract of hire, working as a larry car operator’s helper in stock house No. 5 of the blast furnace department, located in its Center Street plant in the City of Youngstown, County of Mahoning and State of Ohio, and then and there while in the.course of his employment was injured and killed by inhaling poison mill gases, falling into a certain large iron skip bucket, covered over with a larry car load of limestone, carried up to the top of a certain large blast furnace and dumped therein together with said larry car load of limestone and certain other kinds of iron and steel producing materials wherein his body was completely burned and destroyed, and that her- decedent’s said injuries and death were then and there sustained in the course of and arose out of his said employment.”

There is no direct evidence that George Washington is dead nor alive, and no one testified to seeing him fall into the skip bucket.

Counsel for defendant by brief in his summary of the circumstantial character of the evidence upon which plaintiff relies to establish her claim, which we adopt in part as part of the factual statement of this opinion, which is supported by the 452 page bill of exceptions, says:—

"(D Since George Washington was seen by Stuart sitting on the auxiliary larry car he has not been seen either at work, at his home in Youngstown, or, according to the testimony of his brother, anywhere in the places where he had formerly lived. (2) George Washington had worked for substantial wages regularly for a number of years and was considering an advancement in pay as shown by the testimony of the foreman. He had worked steadily up until the very moment that he was last seen. (3) George Washington had prepared to eat his lunch and had sent for a bottle of milk both of which were untouched. (4) The record does not show any domestic, financial, or personal difficulties which would have prompted him to depart from Youngstown or to remain away from the usual places to which he was accustomed. (5) George Washington’s street clothes were found in his locker and if he left the plant he did riot change to his street clothes. (6) Washington did not leave the plant by checking out through the gate which was the usual method of leaving. (7)- Immediate search failed to disclose his presence at or near the place where he was last seen. (8) There is proof that George Washington was affected by the gas present in the plant and was subjected to the same conditions to which Stuart was subjected.”
While there is no direct evidence that the skip bucket to which reference has been made was operated nor its contents dumped into defendant’s blast furnace from the time George Washington was seen last in defendant’s steel plant until operation was resumed after having been stopped for investigation of the cause of escaping gas, there is a conflict in the testimony that “there must have been an error in the manual rotation in which material was loaded into defendant’s blast furnace.”
Defendant contends that there is no evidence that George Washington met death in any manner nor at any time in its steel plant, but that “there were other ways that he could have left the plant, namely, through the railroad yards at the east or the west of the plant around the wall near the blast furnace to the east or to the west or it was possible to proceed through the fence at the edge of the plant.”

Defendant contends that the issues are:—

“(1) As presented by plaintiff’s evidence the uncontroverted facts show that plaintiff’s husband, allegedly deceased, could not have met his death in the manner set forth in the petition.
“(21 The court arrived at a finding of death from trauma in the course of employment by making an inference purely conjectural in nature based on a prior inference, a procedure contrary to law.
“(31 No inference or presumption of fact can prevail over uncontroverted facts to the contrary.
“(41 The evidence produced by the plaintiff and supported by the defendant furnishes only a basis for a choice among different possibilities as to what has happened to George Washington, and plaintiff accordingly has failed to sustain the burden of proof as to the issues presented by her petition.”

There is no evidence that any person saw George Washington leave defendant’s steel plant on or after February 4, 1949.

The trial judge after discharging the jury said:—

“Now, gentlemen, I am going to decide this right now because it is all in my mind and 1 don’t want this to get cold, if it would get cold it would be an awful job to get it back in my mind.
“1 am finding a written verdict for the plaintiff which will be entered and there will be no judgment entered at this time, the judgment will be reserved so that Mr. Clark may file a motion N. O. V. in order to protect his record and the questions raised.
“Now, as to the important findings of fact, first, and I am going to begin at the tail end: Is George Washington dead or alive or, to put it in the past tense, was George Washington dead or alive immediately after February 4, 1949? That is to be determined by an answer to this question: What, under all this evidence, are the probabilities? Preponderating weight of the evidence, of course, means by the greater weight of the probabilities, so that we can reduce that question to this: is it more probable he was still alive after that date? When you analyze all this evidence the conclusion can only be in my judgment that it is more probable under all this record that he was killed and was dead before the end of the day of February 4th.
“Going back one step: How did he come to his death? Is it more probable that he left the plant and died in the river or in some other way? Is it more probable that he came to his death outside of that stockhouse or outside the blast furnace equipment? Or is it more probable he came to his death in and near the job where he was working? I have to resolve that under all the evidence he came to his death at and near the place where he was working.
“Now, the death must directly flow from an accidental injury. The law on that is 140 Oh St 300, and reads:
“ ‘To restate the law under the present statute the term “injury” as used in the Workmens Compensation Act, comprehends a physical or traumatic damage or harm, accidental in its origin and character in the sense of being the result of a sudden mishap occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.’
“There isn’t any doubt there was a toxic gas in that stockhouse and that Stuart was affected by it and had to be taken to the hospital. What are the probabilities then as to whether Washington was affected by that toxic gas? Is it more probable that he was or that he wasn’t? I can reach only the conclusion it is more probable that he was, and that as a direct result of that effect upon him he accidentally fell or dropped into either hole or into one of the holes which, by the mechanism described, leads to the top of the blast furnace. So that I have here an accidental injury directly causing him harm and from which accidental injury he directly came to his death at the blast furnace. Is that more probable or is it more probable that he walked out of the stockhouse and walked away and was never seen or heard from since?
“Don’t forget that he apparently was happily married, no domestic troubles according to the record and no reason in the world why he should run away from his wife and home. Apparently he was a hardworking man, the record shows that that is true.
“So that the conclusion of fact, the findings of fact, by the court is that he sustained an accidental injury in the nature of being gassed by this sewer gas which directly caused him to fall or drop into a hole, as a direct result of which he came to his death by being carried up in the skip bucket and dropped into the blast furnace, and that that is found by the greater weight of the probabilities under all the evidence in the case. The conclusion of law that is flowing therefrom is that the death is compensable under the Workmens Compensation Act, based on what I read from 140 Oh St,— for an accidental injury within the scope of his employment directly and proximately causing the death of the decedent.”

By assignments of error defendant claims “error in the admission of testimony at the trial over defendant’s objection, to which rulings of the court exceptions were taken”; that the court erred in “sustaining plaintiff’s motion for a directed verdict”; that the court erred “in overruling defendant’s motion for a directed verdict”; that “the verdict and judgment is not sustained by sufficient evidence”; that “the verdict and judgment is against the weight of the evidence”; that “the verdict and judgment under the evidence adduced is contrary to law”; and that there are “other errors of law as disclosed by the record.”

Appellant’s counsel has failed to call, our attention to “other errors of law as disclosed by 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.

We have read the voluminous bill of exceptions and record of the proceedings had in the court of common pleas and the lengthy briefs of counsel for the respective parties submitted, and the numerous cases cited by them to us, and conclude that we can not reverse the judgment of the trial court on any of the grounds urged by counsel for defendant by assignment of errors, argument, or briefs.

The judgment of the court of common pleas is affirmed.

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


author: Per CURIAM:

text:
    CRISAFI, Plaintiff-Appellee, v. KOWALSKI et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22853.
    Decided February 24, 1954.

      E. M. Rose, Cleveland, for plaintiff-appellee.
    B. B. Murrad, Cleveland, for defendants-appellants.
   OPINION

Per CURIAM:

This cause comes to this court on an appeal on questions of law from a judgment rendered for plaintiff appellee for $100.00 on a jury verdict in the Parma Municipal Court.

The plaintiff, a duly licensed real estate broker, claimed in his petition that he was engaged by the defendants to purchase a vacant lot at sheriff’s sale, that he did so and performed all of the conditions of the employment on his part to be performed and that the reasonable commission due him for these services was $150.00.

The defendants in separate answers denied that plaintiff was engaged to buy any property for them; that he purchased any lot for them: and that any commission was due him and further claimed that plaintiff’s action was a means of enriching himself unjustly at their expense.

At the close of plaintiff’s case the trial court granted judgment in favor of defendant, Mary Kowalski. The defendant, Stanley Kowalski, is the sole appellant herein.

Plaintiff in his case in chief testified:

“It was in my office. * * * He (defendant appellant) came into my office and he told me that I should go down with him to sheriff’s sale to purchase that lot for him which we did on May 7, 1951.”

He further testified in detail on direct and in rebuttal as to the services he rendered pursuant to his claimed employment. He said that he checked the title, taxes and plat of the vacant lot in question; did all of the bidding at the sheriff’s sale with respect to it; contributed some of his own money in the down payment after the successful bid; obtained the balance of the money from the defendant Kowalski, and deposited the same in person at the sheriff’s office; obtained the deed for the vacant lot in the joint names of Mary Kowalski and Stanley Kowalski; and personally had it recorded, paying for same out of his own pocket.

Defendant appellant categorically denied all of this when on the witness stand. He maintained that on no occasion did he engage the plaintiff to do anything whatsoever in the matter and that in fact he alone, without any assistance from plaintiff, negotiated and carried out the entire affair.

From these facts the main issues in the case were three in number.

1. Was the plaintiff directly and by express contract employed by the defendant to purchase the vacant lot?

2. Did plaintiff substantially perform the services under such agreement?

3. What was the reasonable value of the services rendered by the plaintiff, if the jury found that he was so employed and that he performed the services claimed?

One of the chief assignments of error made by defendant herein is “error in the charges of the court.” We have read the bill of exceptions and the full charge of the trial court and are unanimously of the opinion that there was error committed in the general charge which was prejudicial to the substantial rights of defendant appellant.

1. On pages 133 and 134 of the bill of exceptions the trial court in its charge said to the jury:

“So, therefore, there are two things for you to determine: (1) was there an agreement or contract between these two men for the services claimed, and if you determine that there was an agreement, is $150.00 a reasonable value of those services in view of the evidence that you have heard here?”

There then followed an elaboration on the part of the court of the two issues it mentioned. The court made no mention of the issue of substantial performance of the agreement if the jury found that a contract existed between the parties. Yet such an issue, in our opinion, was a vital phase of this case in view of the respective claims made by the parties, and not to have instructed the jury with respect to this important matter in the case was clear error.

In Simko v. Miller, 133 Oh St 345, par. 5 of the syllabus the Supreme Court said:

“In submitting a ease to the jury it is the duty of the court to separately and definitely state to the jury the issues of fact made by the pleadings accompanied by such instructions as to each issue as the nature of thé case may require.”

2. On page 137 the trial court’s charge in part reads as follows:

“If such services were rendered at the instance of the defendant or some one authorized to act for him, the plaintiff would also be entitled to recover if he rendered such services without an agreement as to compensation and at the instance of a person not authorized to act for the defendant, if the defendant knew that the services were being rendered for its benefit.”

This likewise was error, since it injects an issue that is not in the case. The plaintiff, both in his pleading and in his testimony claimed an express authorization of employment from the defendant.

3. On page 137 of the bill of exceptions the trial court said further to the jury:

“That is what we construe as a contract by an implied arrangement, an implied set of facts or circumstances taking into consideration all the conduct of the parties between themselves, their associations between them, their respective acts between one another and so on and so forth. Those are the things from which you might imply an agreement, but the essential facts of an agreement must still prevail as I outlined to you in the definition.”

This instruction was charging the jury with a proposition of law not in the case. There was no question of an implied contract in this case. Either an express agreement existed between the parties or none at all.

Since this charge dealt with a question not raised by the pleadings or the evidence, it had the tendency to confuse the jury with respect to the issues present in the case. In our opinion the jury was mislead to the prejudice of the defendant.

In Cinn. Traction Co. v. Forrest, 73 Oh St 1, the supreme court had the following to say in paragraph 1 of the syllabus:

“The rule that the court ought to adapt its charge to the issues made by the pleadings and the evidence forbids the introduction into the charge of instructions upon an issue not so raised.”

See also: Railways v. Campbell, 79 Oh St 441; Doering v. Cleveland, 65 Abs 357.

The defendant, in his assignments of error, claims also that the court was in error for saying as part of its charge on the preponderance of the evidence:

“If the evidence of one side outweighs the others, if that is the case, then that side is said to have the weight of the evidence or the preponderance of the evidence.”

We do not believe this statement to be erroneous because it did not direct the jury to place on either side such evidence only as was offered by that side.

Motor Car Co. v. Dyer, 39 Oh Ap 343, syl. 4:

“Charge in action for injuries .that side having evidence which outweighs that of other side has weight or preponderance of evidence did not direct jury to place on either side such evidence only as was offered by that side and was not improper.”

Cinn. St. Ry. v. Adams, 33 Oh Ap 313, syl. 8:

“Charge that preponderance of evidence means greater weight of evidence, which does not necessarily mean by greater number of witnesses, but merely that side whose evidence, including witnesses’ testimony, any written or documentary evidence, photographs, etc., outweighs that of other side, has weight of evidence. Held, not erroneous as relegating each party to its own evidence.”

The other assignments of error we do not deem prejudicial to the substantial rights of the defendant.

The judgment is reversed and cause remanded to the Parma Municipal Court for further proceedings according to law.

Exceptions noted. Order see journal.

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


author: By THE COURT.

text:
    J. T. FISH & COMPANY, Plaintiff-Appellant, v. STATES COAL COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5014.
    Decided February 19, 1954.
    Brownfield, Ford & Douglas, Lyman H. Brownfield and O. Wayne Douglas, of Counsel, Columbus, for plaintiff-appellant.
    H. C. Allread, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This cause comes into this Court on questions of law from a judgment of the' Common Pleas Court affirming that of the Municipal Court of the City of Columbus, Ohio, in favor of the defendant-appellee. The case was tried to the Court without the intervention of a jury. For convenience the parties will be referred to as they appeared in the trial court.

The petition sets forth the cause of action on an account for the purchase price of a coal mining machine. The answer of the defendant is a general denial. It is to be noted that the petition is in the short form which is permitted by §11334 GC. A general denial filed to such a pleading puts in issue all the facts which it would be necesary to aver were the action brought on the long form petition specifically stating all the facts necessary to constitute the cause of action. Dykeman v. Johnson, 83 Oh St 126. From the evidence presented at the trial two issues arose, (1) whether the defendant was acting as agent or as principal; (2) whether the machine purchased was reconditioned as agreed by the plaintiff. The record discloses that the plaintiff was engaged in the business of selling coal mining machinery, that' the defendant is the sales agent for the Orchard Coal Company, a mining operator; that an agent of the defendant and two representatives of the Orchard Coal Company called on the plaintiff; that a machine was purchased but the identity of the purchaser is in dispute. The defendant claims that the purchase was made by the agent of the Orchard Coal Company, while the plaintiff contends that it was made by the agent of the defendant company. Who was the purchaser became a factual question for the determination of the Court. The trial court admitted into evidence the sales agreement between the defendant and the Orchard Coal Company, which defined the authority of the defendant, and the admission of which is claimed to be error by the plaintiff. The plaintiff urges that the defendant’s agent never disclosed that he was acting as agent for the coal company; hence, it could not be bound by any agreement defining the agent’s scope of employment. However, our examination of the record reveals that if credence is given to the testimony of the defendant’s witnesses, an agency was disclosed to the plaintiff. Under such a state of facts the agreement was clearly admissible and the Court did not err in its admission.

The other errors assigned all relate to correspondence betweeen the plaintiff and the Coal Company which, if not admissible, clearly was not prejudicial as it is merely repetitious of the testimony of the various witnesses.

We find no errors assigned which relate to the issue as to whether the machine was delivered in the condition as warranted by plaintiff. Considerable evidence is offered by the defendant to the effect that the machine was not reconditioned as the plaintiff warranted it would be. If this fact were established, title to the machine was never vested in the defendant. This sale was consummated in the State of West Virginia and the laws of that state must be applied. It is said in Michie’s Jurisprudence of Virginia and West Virginia (1951) Volume 16, page 242:

“Section 52. Where by the agreement the vendor is to do anything to the goods for the purpose of putting them into that state in which the purchaser is bound to accept them — or, as it is sometimes worded, into a deliverable state — the performance of these things, in the absence of circumstances indicating a contrary intention, is to be taken as a condition precedent to the vesting of the property.”

The Court, therefore, was clearly justified in finding for the defendant on this issue. When the issues in a case are such that the finding on either of them in favor of the successful party entitles him to a judgment, the judgment will not be reversed for an error relating exclusively to one of the issues. Sites v. Haverstick, 23 Oh St 626. Therefore, even if the Court erred in considering the issue as to the agency of the defendant, which we do not concede, still the judgment is a correct one.

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

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


author: PER CURIAM:

text:
    WHITE, Plaintiff-Appellee, v. WHITE, Defendant-Appellant.
    Ohio Appeals, Eighth District. Cuyahoga County.
    No. 23167.
    Decided October 13, 1954.
    L. J. LoPresti, Louis R. Lanza, Cleveland, for plaintiff-appellee.
    Calhoun, McLeod & Prick, Gorman, Arthur & Schofield, Cleveland, for defendant-appellant.
   OPINION

PER CURIAM:

This appeal comes to this Court on questions of law from an order of the Common Pleas Court entered March 16, 1954, correcting and amending the judgment of the Court filed for journalization on April 14, 1953, granting plaintiff’s petition for permanent alimony and ordering the defendant to pay attorney fees and expenses in the sum of $6000.00.

Whether or not there was any evidence in the record to support an order requiring the defendant to pay the plaintiff (in addition to the order for alimony, the right to occupy the home and other benefits granted the plaintiff by the decree of the court), an award as alimony to defray her legal expenses is not here either presented or considered That question can only be considered on an appeal from the original order as amended by the court’s ruling on the motion to “correct and amend,” and the presentation of a bill of exceptions setting forth the evidnce considered by the court in making such order for trial expenses.

A careful examination of the evidence taken upon the trial of this motion clearly indicates that the trial judge in entering his judgment on April 14, 1953, intended to direct the defendant to pay the plaintiff as additional alimony the expenses incurred by her in managing the suit, including attorney fees in the sum of $6000.00 and to enter judgment therefor in her favor for that amount. Whether the amount of such expenses was the result of an agreement between the parties, or not, is of no moment. The evidence on this question is in conflict, the court concluding on the trial of the motion “to correct and amend” that the amount of the award was determined by agreement. We are bound by such determination, being unable to And that such conclusion is against the manifest weight of the evidence.

In any event, there can be no question but that the court intended to enter upon its journal an enforceable judgment to defray the plaintiff’s legal expenses as a part of the award for alimony.

Thereafter, as is provided by rule of court, counsel for the defendant proceeded to draw the journal entry necessary to carry the court’s order into effect. The journal entry thus drawn and journalized insofar as the provisions for the payment to the plaintiff of an amount sufficient to defray attorney fees and expenses was so imperfectly drawn that it carried into the record of the case an unenforceable order. This was not in accord with the judgment which the court intended to enter on the journal. The judgment as thus drawn constituted an “irregularity in obtaining a judgment” as provided by §2325.01 R. C., and was and is subject to motion after term seeking to correct it so that the journal will in fact speak the truth.

For these reasons the order of the court of March 16, 1954. correcting the journal entry of April 14, 1953 is affirmed. Exceptions. Order see journal.

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


author: By DOYLE, PJ.

text:
    DEFIORE, d. b. a. ACE CONCRETE COMPANY, Plaintiff-Appellee, v. PEFFERS, d. b. a. DOVER COAL & SUPPLY COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23284.
    Decided March 2, 1955.

      Frank Leonetti, Cleveland, for plaintiff-appellee.
    Boer, Mierke, Thomas, McClelland & Handy, Cleveland, for defendant-appellant.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By DOYLE, PJ.

This is an appeal from a judgment of $854.68, rendered upon the verdict of a jury in the Municipal Court of Cleveland, Ohio.

The plaintiff (appellee in this court) alleged in his petition that he was a concrete contractor, and, in the carrying on of his work, purchased concrete from the defendant; one purchase was for a driveway job at 19881 Westway Avenue, Rocky River, Ohio,

Pursuant to an order given by him for a mix known in the business as 1-2-4 (to be used on the job) the defendant, while representing the delivery as a 1-2-4 mix, delivered a mix known as a lean 1-3-5. The 1-3-5 mix was used in the installation, and, because it was not suitable for this kind of construction, “the driveway * * crumbled * * * and was defective,” resulting in plaintiff constructing .a driveway that was not in accordance with the plans and specifications in the agreement with the property owner. The petition continued by alleging that, as a result of the foregoing, he was required to remove a portion of the driveway and replace it. and “that the reasonable cost of removing part of said driveway and repairing the defect was $391,” for which sum the plaintiff prayed judgment.

In a second cause of action, the plaintiff pleaded that he bought from the defendant, concrete for installation on another driveway located on property at 28422 West Oakland Street, Bay Village, Ohio, that the defendant sold and delivered to him a lean 1-3-5 concrete mix, when a 1-2-4 mix was ordered, and the defendant represented the lean 1-3-5 mix as a 1-2-4 mix; that this driveway likewise crumbled and was defective, due to the weak mix, and “that as a result of the defendant’s conduct, said driveway will have to be removed and replaced, at a cost of approximately * * * $818.00, and that, by virtue of the facts hereinbefore stated, plaintiff has been damaged in the sum of * * $818.00 for which amount plaintiff prays judgment” against the defendant.

The defendant denied as to each cause of action that he delivered a lean mix, or that he misrepresented the mix delivered. He pleaded that, if a defect arose in the driveways, it was not due to a weak or defective mix delivered by the defendant, but was due to the plaintiff’s own negligence. In addition to specific denials of the character noted above, the defendant denied generally the allegations in the petition.

The jury rendered its verdict in the sum of $391.00 on the first cause of action, and in the sum of $454.68 on the second cause of action. Judgment was rendered for $854.68 (There is an obvious error in addition here, because $454.68 + $391.00 = $845.68).

While the technical common law forms of action in this State are abolished by the provision of §2307.02 R. C., that (there) “shall be but one form of action, to be known as a civil action,” this code provision does not abolish inherent distinctions between actions ex contractu and ex delicto.

“The character of an action as one in tort or as an action ex contractu is determined by whether it arises from the breach of some agreement of the parties, or from a violation of some duty imposed upon a party by law, independent of contract or the will of either. Clearly, any petition alleging a contract and its breach, seeking recovery of damages for such breach, states an action ex contractu, and not ex delicto * *

1 Ohio Jur. 2d, Actions, Sec. 16 at page 273.

It is obvious in the case here under consideration that the action is one in contract and not in tort.

We make the above observation because the court submitted the plaintiff’s case to the jury apparently on the theory of contract but for some unknown reason, mixed into it a tort theory. The record speaks as follows:

“The Court: It his been brought to my attention that you will find when you read the answer of the defendant that in his answer he says that if anything was wrong with the construction of the driveways, that it was due to the negligence of the plaintiff; so that you will consider that part, too. In other words, if the plaintiff was negligent in applying this concrete to the driveways why, of course your verdict then would be for the defendant; but that is a question that is up to you people to determine.”
This charge, of course, was improper, but, in view of the verdict, it was not prejudicial and was induced by the appellant.
The appellant claims error in the charge of the court in that there was a failure “to separate and state the issues of fact made in the pleadings” and a failure “to charge on the law controlling such issues.”

Had this complaint been made to the trial court and a request duly made for additional instructions, and had the court refused to comply, it is probable that the claim of error would be substantial. However, no such request was made and only a general exception was taken to the charge, and under such circumstances, we recognize the case of Rhoades v. City of Cleveland, 157 Oh St 107, as controlling. It is there stated in the syllabus:

“Where claimed errors in the charge of the court are errors of omission and not errors of commission, unless counsel has requested the court to supply the omissions, such errors of omission will not ordinarily justify a reversal. Sec. 11560 GC applied.” (Now §2321.03 R. C.)

There was produced, upon trial on the first cause of action, sufficient evidence of probative worth to justify a jury in finding that the defendant breached his contract with the plaintiff in failing to deliver the concrete mix ordered, and that as a result thereof the plaintiff was damaged. There may be applied to circumstances of this kind, the rule stated in Hadley v. Baxendale, 9 Exch. 341, and adopted in this State in a number of cases. See, for instance, Coal Company v. Cardox Corporation, 152 Oh St 437 at page 447. The rule is:

“* * * Wkere two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fully and reasonably be considered either arising naturally, that is, according to the usual course of things, from such breach of contract itself, or were such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach of it.”

The jury, as the triers of fact in the first cause of action, found a breach of contract and determined the damages, i. e., the reasonable cost of the replacement by the plaintiff, in the amount of $391.00. We find no error of a prejudicial character of which the appellant can complain influenced this finding.

We now direct attention to the second cause of action which is based upon a claimed breach of contract in the furnishing of concrete mix, for a driveway on another job and at a different address.

The petition charged the violation of an express contract for a specified kind of concrete mix. There is no evidence to justify a conclusion that the mix delivered was not in compliance with the specifications. The evidence of the plaintiff was only that it was a poor mix and the driveway later became defective.. This evidence does not prove that the material delivered was not in compliance with the contract, as alleged in the petition, nor that damage occurred as the result of a violation of its terms.

The following rule is definite in this state:

It is the duty of a party on whom the burden of proof rests to produce evidence which, furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities, as to any issue in the case, he fails to sustain such burden.

There is nothing in the record to prove that the mix delivered on this job did not comply with the specifications. From the evidence, the unfortunate result could be attributed to any one or more of many causes for which the plaintiff was not responsible.

The judgment rendered on this cause of action will be reversed and final judgment entered for the defendant.

Judgment affirmed on the first cause of action.

Judgment reversed on the second cause of action.

STEVENS, J, HUNSICKER, J, concur.