author: By MCLAUGHLIN, Circuit Judge.

text:
    TANK TRUCK RENTALS, INC., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
    United States Court of Appeals, Third Circuit.
    No. 12060.
    Decided March 6, 1957.
    Leonard Sarner, Philadelphia, Pa. (Wolkin, Sarner & Cooper, A. Allen Simon, Thomas P. Glassmoyer, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., on the brief), for petitioner.
    Walter R. Gelles, Washington, D. C. (Charles K. Rice, Asst. Atty. Geni., Lee A. Jackson, Hilbert P. Zarky, Attys., Dept, of Justice, Washington, D. C., on the brief), for respondent.
    Before BIGGS, Chief Judge, and McLAUGHLIN and HASTIE, Circuit Judges.
   OPINION

By MCLAUGHLIN, Circuit Judge.

Petitioner during the year 1951 was a motor carrier transporting bulk liquids. It supplied vehicles and driver-operators to various “over-the-road” carriers holding operating certificates from the Interstate Commerce Commission. During 1951, it paid fines totalling $37,965.00 imposed on its drivers for operating on the highways motor vehicles in violation of state statutes limiting weights of motor vehicles. Most of the fines were paid in Pennsylvania which had a particularly low maximum weight law at that time. The New Jersey fines sought to enforce the Pennsylvania maximum weight provision through reciprocity provisions of the New Jersey statute. The fines paid in states other than Pennsylvania and New Jersey resulted from unintentional overloading.

As a matter of economic policy, petitioner deemed it expedient to overload and run the risk of an occasional fine. The Tax Court found that it had been the general practice of the trucking industry to overload in Pennsylvania and chance the fines with the result that petitioner would have been at a competitive disadvantage if it had attempted to conform to the law. In 1955, the Pennsylvania maximum load limits were raised substantially.

The rule that certain expenditures otherwise ordinary and necessary under Section 23(a) (1) (A) of the Internal Revenue Code of 1939, 26 U. S. C. A. §23(a) (1) (A), are not deductible if their allowance would frustrate sharply defined national and state policies is of judicial origin. Commissioner of Internal Revenue v. Heininger, 1943, 320 U. S., 467, 64 S. Ct., 249, 88 L. Ed., 171.

In Hoover Motor Express Co. v. United States, D. C. M. D. Tenn. 1955, 135 F. Supp., 818, affirmed 6 Cir., 1957, 241 F. (2d), 459, the District Court made an exhaustive examination of the pertinent case law and held overloading fines were not deductible by a motor carrier. Petitioner seeks to distinguish the Hoover opinion on the grounds that: (1) there was a greater disparity in the Pennsylvania weight limitation and those of the adjoining states; (2) the economic factors are more compelling in this instance; and (3) the Pennsylvania enforcement policy was sporadic or discriminatory. These broad allegations add nothing substantial to petitioner’s wholly untenable theory. Under it the federal court on a tax controversy would be required to examine not only the merits of particular criminal cases in the state courts, but indeed the wisdom of a state motor vehicle statute and the regularity of its enforcement. State legislatures are the determinative tribunals in those areas. Once it is concluded that the regulation is within the sphere of proper legislative action, the courts will not gainsay the legislature on just where the arbitrary line between allowable and proscribed weights should be drawn. Nor is it appropriate at this juncture to review state enforcement policies. Such must be the rule if there is to be any semblance of order on this and similar questions. The weight limit law is not to be considered a mere revenue measure, as petitioner suggests, simply because the fines collected are assigned to road repair. It has been held by this court that the disputed law is for the protection of the citizenry of Pennsylvania as well as the public roads. See McDonald v. Pennsylvania R. Co., 3 Cir., 1954, 210 F. (2d), 524, involving a death claim arising in part from disregarding this statute regulating overweight vehicles.

Petitioner seeks to support its theory by Jerry Rossman Corporation v. Commissioner, 2 Cir., 1949, 175 F. (2d), 711, which allowed deductions of overcharges paid over to the government under the Emergency Price Control Act of 1942, 50 U. S. C. A. Appendix, §901 et seq. See also National Brass Works v. Commissioner, 9 Cir., 1950, 182 F. (2d), 526, 20 A. L. R. (2d), 590; and National Brass Works v. Commissioner, 9 Cir., 1953, 205 F. (2d), 104. Those decisions turn on the legislative history of the price control statutes which indicated a distinction between wilful breach and innocent mistake. That distinction does not exist in the governing motor vehicle law now before us, and even if it did petitioner’s offenses in Pennsylvania and New Jersey were admittedly wilful. The transgressions in other states, though unintentional, were in disregard of the local laws. Further, the O. F. A. cases rely on the unusually complex regulatory scheme in the price control law, which problem does not confront a motor carrier with respect to weight limit restrictions. The O. P. A. penalty required merely that the unlawful income be paid over to the government. That purpose was not frustrated in a non-wilful case by relieving the taxpayer of the tax burden on the income so disgorged. As Judge Learned Hand wrote in Rossman, 175 F. (2d), at page 713, “We think * * * in short that there are ‘penalties’ and ‘penalties,’ and that some are deductible and some are not.”

We hold it clear that the state statutes involved are as said in Commissioner of Internal Revenue v. Heininger, supra, 1943, 320 U. S., 467, 64 S. Ct., 253, 88 L. Ed., 171, the creation of “sharply defined * * * state policies”; that they are “state policies evidenced by some governmental declaration of them.” Lilly v. Commissioner, 1951, 343 U. S., 90, 97, 72 S. Ct., 497, 501, 96 L. Ed., 769. The court that fashioned those phrases could not have had in mind a more typical example than motor vehicle laws.

The decision of the Tax Court will be affirmed.

      . The following table shows with respect .to the number and dollar amounts of fines and costs of the states involved: the taxable year involved paid by taxpayer to each
      State Pennsylvania Number of Fines Dollar Amt. of Fines Dollar Amt. of Costs Total
      at $50. each 649 $32,450.00 $2,709.40 $35,159.40
      at $25. each 62 1,550.00 226.75 1,776.75
      New7 Jersey 7 2,800.00 30.00 2,830.00
      Maryland 7 410.00 29.91 439.91
      Ohio 9 405.00 51.10 456.10
      West Virginia 10 320.00 39.68 359.68
      Delaware 2 30.00 9.00 39.00
      746 3,095.84 $41,060.84 $37,965.00

      . The statutory maximum gross weight for the truck tractor and semitrailer combination owned, used and operated by taxpayer was, for each of these states in 1951, as follows:
      State Statutory Citation Maximum Gross Weight
      Pennsylvania 75 P. S. §453 (g) 45.000 lbs.
      New Jersey N. J. S. A. 39:3-84 60.000 lbs.
      Ohio Page’s Ohio Gen. Code Anno. §7248-1 Statutory formula which results in range from 57,000 to 67,600 lbs.
      Delaware Del. Code Anno. Title 21, Chapter 45, §4503 48.000 lbs. for single axle trailers; 60,000 lbs. for tandem axle trailers
      W. Virginia 1951 Supp. to West- Va. Code of 1949 Anno. §1721 (463) Statutory formula which results in range from 54,000 to 60,800 lbs.
      Maryland Flack’s 1951 Anno. Code of Maryland §278, Art. 66 Vz Statutory formula which results in gross weight of 65,000 lbs.

      . Act No. 70 of June 30, 1955, amended the Pennsylvania Vehicle Code, 75 P. S. §§453, 454.


source: Caselaw Access Project

author: By HUNSICKER, PJ.

license: Public Domain

text:
    MAGID, Plaintiff-Appellant, v. CLEVELAND HEIGHTS (City) et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24127.
    Decided June 28, 1957.
    Roudebush, Adrion, Brown, Corlett & Aldrich, for plaintiff-appellant.
    King A. Wilmot, Director of Law, for defendants-appellees.
    Hahn, Loeser, Keough, Freedheim & Dean, for Amici Curiae.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

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

Sam D. Magid, the appellant, as a resident taxpayer, filed an injunction action against the City of Cleveland Heights, Ohio, herein called city, and its various officials. In this action Mr. Magid asked that “amended and substitute ordinance No. 73-1953, as amended,” of Cleveland Heights be determined to be invalid, and that an order of injunction issue to the city officials enjoining them from taking any action with reference to such ordinance.

The case was tried in the trial court upon an agreed statement of facts and the exhibits offered by the parties.

The facts are that: Cleveland Heights is a charter city, which adopted, many years ago (1921), a comprehensive zoning plan for the entire city; on December 20, 1954, the council of the city passed “amended and substitute ordinance No. 73-1953, as amended”; this ordinance accomplished the rezoning of an area of 147 acres known as “Longwood,” the home of the Severance family; prior to the enactment of ordinance No. 73-1953, “Longwood” was zoned for single-family residence use only; ordinance No. 73-1953 created a new use classification known as 3CP (commercial-professional); and it is to this new use classification, and the claimed effect that it has upon “Longwood” and surrounding property, that the action for injunction is directed.

After judgment was awarded in the Court of Common Pleas to the city of Cleveland Heights, Mr. Magid appealed to this court, saying that the trial court erred:

“1. In overruling plaintiff’s motion for new trial.

“2. In rejecting evidence offered by plaintiff at the trial hereof, to the prejudice of plaintiff.

“3. In determining that the ordinance constituting the substance of this action was lawfully enacted.

“4. In determining that the ordinance constituting the substance of this action established a lawful zoning use classification.

“5. In determining that the Board of Control, created by the ordinance constituting the substance of this action, is a lawful board with lawfully delegated powers.

“6. In determining that the procedures provided in the ordinance constituting the substance of this action are lawful.

“7. In rendering judgment manifestly against the weight of the evidence.”

At the beginning of our consideration of this case, it should be noted that the owners of Longwood are not objecting to the ordinance herein, but the action to declare the ordinance (73-1953) invalid is prosecuted by a neighboring landowner as a taxpayer resident of the city of Cleveland Heights.

The city of Cleveland Heights, by its charter provisions, has all powers of local self-government. The power of the city, with respect to control of matters within its corporate boundary, is set out in Article II of the charter, which is as follows:

“ARTICLE II. POWERS

“The city of Cleveland Heights shall have all powers of local self-government now or hereafter granted to municipalities by the Constitution and laws of Ohio, and such further powers as may now or hereafter be granted by the laws of Ohio; and all such powers shall be exercised. in the manner prescribed by this charter or by ordinances of the Council created hereby.”

The legal rules which must guide our consideration of this case have been stated in an excellent review of the authorities by Judge Hurd, in the case of Cleveland Trust Co. v. Brooklyn, 92 Oh Ap 351, wherein the court said:

“1. All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. Such laws and regulations must be considered as a valid exercise of police power if substantially related to public health, safety, morals or welfare.

“2. The power of a municipality to establish zones and to classify property accordingly, is purely a legislative function which will not be interfered with by the courts, unless such power is exercised in an arbitrary, confiscatory and unreasonable manner in violation of constitutional guarantees.

“3. The presumption of validity which attaches to legislative acts in general applies with equal force to zoning ordinances and regulations and the facts to justify interference by courts with the legislative function must clearly appear from the evidence. If the legislative classification for zoning purposes is fairly debatable the legislative judgment must be allowed to control.

“4. Granting the jurisdiction of a court in a particular case to determine the validity of the whole or any part of a zoning ordinance in appropriate proceedings, such jurisdiction is limited to finding such regulation valid or invalid, and the court may not determine the ultimate classification of the zoned area or substitute its judgment for that of the legislative body.”

The power of the city to enact zoning regulations and to amend such regulations is not controverted. Specifically, it is claimed that council did not comply with the procedure for amendment of the zoning regulations set out in Title Three, Chapter 13, Sec. 1113.01 and Sec. 1113.02 of the Zoning Code, which sections are as follows:

Sec. 1113.01:

“The City Council may amend, revise, rearrange, renumber, or re-codify this Code or any of the provisions hereof at any time and from time to time upon its own motion or upon recommendation of the City Planning Commission or upon petition, after holding a public hearing upon the'proposal of which not less than thirty days’ prior notice has been given by publication at least once in a newspaper of general circulation in the City. However, such proposal, prior to action thereon, shall be referred to the City Planning Commission for its consideration and recommendation. The Commission shall be allowed a reasonable time, not less than thirty days, for its consideration and recommendations. (Emphasis ours.)

Sec. 1113.02:

“If the City Planning Commission shall have made a recommendation for action by the City Council upon such proposal within such thirty-day period or thereafter but prior to voting by the City Council upon the proposal, no action shall be taken by the City Council contrary to such recommendation except by the concurring votes of not less than three-fourths of the members of the City Council. Any such proposal may be amended prior to the voting thereon by the City Council without further notice or postponement if such amendment to the proposal shall be germane to the subject matter thereof and is in accord with the recommendation of the City Planning Commission.” (Emphasis ours.)

On August 17, 1953, ordinance No. 73-1953 was introduced in the council of the city of Cleveland Heights by the mayor of the city, and then referred, on August 21, 1953 (in compliance with Sec. 1113.01 of the Zoning Code), to the planning commission of the city.

Thereafter, numerous communications and discussions were had with reference to this ordinance by the mayor of the city, the city council, the planning commission, and interested parties.

On January 18, 1954, an amended and substitute ordinance No. 73-1953 was given its first reading in council.

The planning commission, the city council and interested parties had many discussions within their respective bodies concerning the purpose and effect of the ordinance.

A public hearing on the amended and substitute ordinance No. 73-1953 was duly advertised to be held on April 12, 1954, and such notice contained a full and complete copy of the amended and substitute ordinance.

At that hearing a number of reports from interested organizations were read, and official note was taken of such meeting at the April 19, 1954, meeting of the city council. Two public meetings on the subject matter of the ordinance were held thereafter by the city planning commission — one on April 19, 1954, and one on May 18, 1954.

On May 24, 1954, a joint meeting of the city council and the city planning commission was held for the purpose of discussing and considering amended and substitute ordinance No. 73-1953. Other interested persons were present at this meeting.

On June 11, 1954, the city planning commission approved amended and substitute ordinance No. 73-1953 and recommended its adoption by the city council, “and further that the changes set forth in the draft of proposed amendments dated June 5, 1954, be approved in principle subject to adoption by city council.”

On June 21, 1954, the amended and substitute ordinance No. 73-1953 was given its second reading after the mayor of the city reported that there was as yet no general agreement on the form and effect of the proposed amendments.

Thereafter, many discussions and communications were had between the council, the planning commission, and national planning organizations and interested parties, with reference to methods of safeguarding, by appropriate legislation, the interests of the city in the new zoning classification known as a 3CP use.

As a result of these discussions and communications, the ordinance as advertised was amended to include the recommendations of the city planning commission and became known as “amended and substitute ordinance No. 73-1953, as amended.”

This latest ordinance was then presented to city council on September 20, 1954, and referred to the city planning and building committee of council, who thereafter recommended the adoption of such “amended and substitute ordinance No.' 73-1953, as amended.” This recommendation was accepted by the city council, and such latest version of the ordinance was, by unanimous consent of council, given its final reading and adopted by a unanimous vote of the full city council.

Is “amended and substitute ordinance No. 73-1953, as amended,” a valid ordinance; or was the ordinance, as originally advertised (amended and substitute ordinance No. 73-1953), approved by the city planning commission, and upon which a public hearing was had, so changed by the last amendments that such latest ordinance became, in effect, a new legislative proposal that required, in order to make it valid, publication, reference to the planning commission, and a public hearing?

When we consider Sec. 1113.02 of the Zoning Code, set out above, we find that “any such proposal may be amended prior to the voting thereon by the city council without further notice or postponement if such amendment to the proposal shall be germane to the subject matter thereof and is in accord with the recommendations of the City Planning Commission.” (Emphasis ours.)

If the amendment of “amended and substitute ordinance No. 73-1953” was “germane to the subject matter” of the “amended and substitute ordinance No. 73-1953,” and such amendment was “in accord with the recommendation of the city planning commission,” then such later amendment was proper, and we must determine that the ordinance is a valid enactment of the council of the city of Cleveland Heights.

In the agreed statement of facts, we find that the final draft of this ordinance contained the amendments suggested by the planning commission when they approved the amended zoning plan.

Our examination of the amendments also shows that these latest amendments were “germane to the subject matter” of the proposal which the planning commission had under consideration when their recommendation was made to the city council.

On the original proposal to amend the zoning ordinance as it applied to Longwood, a full public hearing was had. All the regulations of the city, with reference to a public hearing, were properly completed.

We also determine that the amendment of the zoning ordinance, as accomplished by “amendment and substitute ordinance No. 73-1953, as amended,” did not constitute spot zoning. State, ex rel. Kangesser Co., v. Beachwood Village, et al., 73 Abs 73.

In the ordinance under discussion herein, the city has, in reality, established a zoning plan within a zoning plan. Only one other property within the present city limits can meet the requirement of the newly-created class 3CP district, and that property is used as a golf course.

It is thus apparent that the newly-created class 3CP was designed to take care of Longwood, and to guarantee, so far as such legislation can, that the surrounding territory will not be unduly harmed by the proposed new development.

It was for this and other apparent reasons that certain safeguards, by way of restrictions on use and a requirement for submitting a land-use plan, were written into the Zoning Code by amendments made after the planning commission had approved the general design and Code change.

The planning commission recommended in their June, 1954, meeting, and in their August, 1954, meeting, that certain amendments be made in the ordinance. The report of the planning commission discloses action then taken providing that if the amendments proposed in the August meeting were adopted, the planning commission then recommended the adoption by the city council of “amended and substitute ordinance No. 73-1953, as amended.” These proposed amendments of the planning commission were written into the ordinance as finally adopted.

The changes thereafter made in the ordinance were minor changes, and were properly within the procedural requirement set out in the Zoning Code.

The creation of a board of control, as provided for in this ordinance, did not change the substance of the ordinance, only the method whereby the restrictions on the use of land in a class 3CP district can be regulated, supervised and enforced. Nothing unlawful has been done by the creation of this supervisory board of control. It is an administrative measure designed to secure a continuity of enforcement of the provisions of a class 3CP district, and not a delegation of legislative powers. The ultimate control of the use plan for the 3CP use districts remains with the city council by the terms of the ordinance. L. & M. Investment Co. v. Cutler, et al., 125 Oh St 12; McCloud v. Woodmansee, Bldg. Commr., et al., 165 Oh St 271; McCauley v. Ash, et al., 97 Oh Ap 208.

The original proposal that was submitted to council and which was advertised, and upon which a public hearing was had, called for a change in the zoning status of Longwood from a single-family residence-use district into a separate and different use district. The details by which such new use district, known as 3CP, would be preserved and supervised, was, through many amendments, finally made a part of the original proposal; i. e., the change from one use district classification to another.

We think the city had the power to make the change of use classification, and to thereafter make the amendments which were finally adopted as a part of the original proposal, without further and additional advertisement and public hearing.

We find that “amended and substitute ordinance No. 73-1953, as amended,” has a direct and reasonable relation to the health, safety, morals and general welfare of the city of Cleveland Heights, Ohio.

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

The judgment of the trial court must be affirmed.

Judgment affirmed.

DOYLE and STEVENS, JJ, concur.


author: By CLANDE V. D. EMMONS, J.:

text:
    AKRON MILK PRODUCERS,. INC., Plaintiff, v. LAWSON MILK COMPANY, Defendant.
    Common Pleas Court, Summit County.
    No. 209989.
    Decided January 2, 1958.

      Buckingham, Doolittle & Burroughs, Herman Rabe, Stuart H. Russell, for plaintiff.
    Brouse, McDowell, May, Bierce & Wortman, Charles Iden, for defendant.
   OPINION

By CLANDE V. D. EMMONS, J.:

This action is one for injunctive relief primarily, wherein the Akron Milk Producers, Inc., hereinafter referred to as the Association, is asking the Court in its prayer to permanently enjoin the defendant, The Lawson Milk Company, hereinafter referred to as Lawson, from:—

1. Engaging in, authorizing, encouraging or approving any conduct designed to induce, or attempting to induce any producer members of the Plaintiff Association to breach, cancel or terminate their marketing agreements with the Plaintiff.

2. From authorizing, encouraging or instructing any of its agents, and in particular those persons engaged in hauling milk from the farms of the individual producer members of the Plaintiff Association to Defendant’s plant, or other designated delivery stations for delivery to Defendant, to cease hauling milk to said points by reason of the membership of such individual producer members in the Plaintiff Association and from interfering in any way or manner with the orderly transportation of milk of the farms of individual producer members of the Plaintiff to the plant or designated stations of the Defendant.

3. From engaging, authorizing, encouraging or approving any refusal to purchase milk produced by producer members of Plaintiff Association for the reason that such producers are members of the Plaintiff Association.

Considering part 1 of the prayer the Court finds that there was an attempt made by agents and representatives of Lawson to get certain member producers to breach their contract with the Association. This is evidenced by Plaintiff’s Exhibits 21, 22, 23, and 24, which consisted of letters written to the Association by members thereof, induced by Lawson, withdrawing or resigning from membership in the Association not in accordance with the terms of the contract between the producers and the Association. The pertinent part of the contract is as follows:—

“Ninth: This contract, if signed by both parties hereto, shall become effective as of the date signed by the producer and shall remain in effect until cancelled as follows:—

“After the first six months, either party desiring to cancel shall serve notice on the other not more than 60 days nor less than 30 days before the end of any subsequent six months of his or its desire to cancel * * * The cancellation shall then be effective on the six months or yearly anniversary of the date of the signing 4 * *”

The letters of withdrawal or resignation were dated the latter part of December 1955, and they were not such as were requests for cancellation within the terms of the Association-Producer contract.

An attempt to induce or to cause a breach of contract establishes prima facie evidence of legal malice and this must be overcome by evidence proving justification which was not forth coming in this case.

While the Association did not accept these withdrawals or resignations because the producers were trying to breach their contract, nevertheless the attempt to get these producers to breach their contract with the Association was induced by Lawson or its representatives. (See 10 Ohio Circuit Court 558, Dannerberg v. Ashley.) This was not an attempt to induce the member producers to terminate their contracts legally, but to breach them.

Since under the existing circumstances there was no justification of such action, the Court is of the opinion that Lawson should be enjoined from engaging in, authorizing, encouraging, or approving any conduct designed to induce or attempting to induce any producer member of the Association to breach their contract with the Association.

Concerning the question of termination of contract, the Court is impressed that there is ample proof to the effect that Lawson’s representatives attempted to induce and persuade the member producers to legally terminate their contract with the Association.

The Court is aware that under the Federal and State laws .Agricultural Cooperatives such as the Plaintiff Association are favored entities, however excepting for a few exceptions, these bodies or organizations are amenable to the samé general laws as are individuals and corporations.

75 Oh Ap 25, Leibovitz v. Central National Bank (cited by the Association). This is the case of a third party being an intermeddler and one who had no concern as to the parties involved and the syllabus is as follows:—

“Where one wrongfully interferes with the performance of an executory contract, which would be carried out except for such interference, he is liable to a party to such contract for damages sustained as the result of such interference.”

The turning point in this case rested on the word “wrongfully.” Without specifically stating so, the Court recognized that justification was a defense to an action for business interference. This recognized defense of justification was relied on in Horth v. American Aggregate Corp., 20 O. O. 76:—

Syllabus 1:—

“It is not a malicious inducement of a breach of contract for a person to enter into an agreement with another person with knowledge that such other person has a contract with a third person covering the same subject matter and that both contracts can not be performed.”

This would appear to be contrary to the decision in the Leibovitz case until we discover the “nubbin” in this case, for the Court on page 82 made this statement:

“It is not unlawful for one, by fair and lawful persuasion, to interfere with contracts of another where made with honest intent to improve one’s own business.”

E. R. Squibb & Sons v. Ira J. Shapiro, Inc. — 64 N. Y. Supplement 2nd, 368, Syllabus 2:—

“A corporation which had exclusive agency contract for the sale of manufacturers product under contract, providing that appointment may be terminated at any time by manufacturer or corporation on ten days notice in writing to the other, was not entitled to recover damages from those who allegedly induced the manufacturer to terminate the contract in accordance with the terms of the contract.”

It is claimed by the Association that the actions of Lawson in attempting or causing termination of contracts between producers and Association were prompted solely through a desire to injure the Association. This is not borne out by the testimony for in fact it was Lawson’s competitive interest that was the prompting factor and not primarily a motivation brought about through hatred, ill will or a desire to injure.

Re-instatement of the Law of Torts — page 77 (H):—

“The privilege stated in this section is given to advance the actor’s competitive interest * * * If his conduct is directed, at least in part to that end, it is immaterial that he is also motivated by other impulses as for example, hatred or a desire for revenge.”

Representatives of the Association admitted that they were instrumental in getting independent producers to terminate their contract with Lawson and then obtain them as members of the Association — this is the same thing the Association is complaining about as concerns Lawson.

In Fort v. People ex rel Cooperative Farmers Exchange, 256 Pacific Reporter, page 325, the Court noted on pages 328 and 329:—

“A woman tells her friends that in her opinion X sells better goods and sells them at a lower price than does Y, and advises them to transfer their patronage from the latter to the former. They follow her advice * * * C employs hundreds of men in his factory. A manufacturer of machinery induces C to install machinery and this results in the discharge of many men. In these instances, and in thousands of similar instances, business and occupations are interfered with — sometimes disastrously to those affected — but such interference is lawful and cannot be enjoined.”

Where one has genuine business purposes in open competitive fields, that one has the right to compete for the products of another or for the business of the consumer. As there is a legal right to advertise and persuade the consumer to purchase merchandise from a seller so there is equal right for one to compete for the supplies of a producer. No association of men can have greater privileges than the individual simply for the reason that the Federal and State Governments favor that group. Could not two individuals vie one with another in competition to obtain customers? If there can be a competitive field for customers,.then the converse is also true that individuals could compete for sources of supply. As individuals can conduct themselves so can other legal entities All too long have we been regimented in daily life. Free enterprise is a thing rapidly disappearing behind clouds of socialism. It is about time the day of the clear sky of individual freedom be seen again.

This Court has always favored Unions and Cooperative Associations as necessary adjuncts for the raise in the standard of living of the working man and farmer, but at the same time that favoritism cannot supersede or be paramount to the Court’s duty in preserving and protecting the legal rights of others.

Barn v. Dairymen’s League Cooperative Association, 220 Appellate Division, 624, the Court stated:—

“It seems obvious that Cooperatives must attain their goal by economic pressure, legitimately applied and .without resorting to practices and acts, which if committed by a less favored corporation or private individual, would not be countenanced by a Court of Equity.”

Sorenson v. Chevrolet Motor Company, 214 Northwestern 754, the Court stated:—

“Every act done by a business man in diverting trade from a competitor to himself is an act intentionally done and when successful is an injury to the competitor — but it is not wrong.

HyGrade Dairies v. Falls City Milk Producers Association, 86 Southwestern 2nd, 1046 on page 50, the Court incorporated the views of the trial court, and which were in part as follows:—

“The Association was free at any time to refuse to sell milk of its members and free to refuse to let its members sell their milk to him (Handler) direct.”

As I have indicated I am not pronouncing the thought that Lawson can encourage, or in any way attempt to get producer members to breach their contract with the Association, but in the spirit of business competition Lawson’s representatives may argue their advantages and persuade producers to enter into contracts with them, orally or otherwise, and to encourage the producers to legitimately terminate their contract with the Association or any other group.

No injunction will be granted prohibiting Lawson from engaging, authorizing, encouraging or approving any conduct designed to induce, or attempting to induce any producer members of the Association to terminate their marketing contract with the Association.

Concerning part 3 of the prayer for injunctive relief, which part herein is referred to as part 2 in this opinion, the Court finds that the haulers were not employees, agents, or special agents of Lawson and therefore any conversation had between them and third parties not in the presence of the representatives of Lawson will not be considered for any purpose. However, assuming that this conversation did bind Lawson, it is not such as would cause the Court to issue an injunction in respect to this claim.

The last part of the prayer is to enjoin Lawson from engaging in, authorizing, encouraging or approving any refusal to purchase milk produced by producer members of Plaintiff Association for the reason that such producers are members of the Plaintiff Association.

The conduct of Lawson which prompted this part of the prayer was by writing a letter to all 116 producer members of the Association informing them that as of the close of business October 31, 1957 Lawson would discontinue taking their supply of milk. However, it was agreed between the parties that Lawson would not discontinue the supply until this case had been decided and the Court purposely did not decide this matter until after January 1, 1958 in order to allow the producer members of the Association to maintain or build up their milk quota which is established during the months of October, November, and December of each year.

For some years Lawson had been dealing with the Association, accepting the supply of milk of 116 producer members of the Association. The parties were not governed by any contract excepting that Lawson would pay the producer members for milk delivered to it and tire members would pay their dues to the Association proportionate to the amount of milk delivered to Lawson.

There was uncontroverted testimony that Lawson had a daily surplus of some 10,000 gallons for some months and that under the circumstances Lawson had to cut down the supply. On October 23, 1957, R. J. Lawson, the President, wrote the producers a letter, the purport of which is as follows:—

“We are dropping all member producers of the Akron Milk Producers, Inc. (Association) because the unusual heavy milk production this Fall which has created a surplus too large for us to handle. We would like to retain all farmers who are presently supplying us with milk but we cannot use all the milk currently shipped to us.

“We are dropping the Akron Milk Producers (Association) members because they belong to a group whose purpose is to provide them with a market for their milk. If we were to drop independent producers who have no contract with any association guaranteeing them a market, they would have no help in selling their production * * *”

The 116 members of the Association supplied Lawson with some 5,500 gallons pf milk a day and the officers of Lawson testified that the difference between the 10,000 gallons total surplus and the 5,500 would be assumed by Lawson for the reason that the 4,500 gallons came from independent producers.

The Association contends that Lawson has no right to select these 116 members and discontinue purchasing their supply of milk, but rather suggests that the supply be curtailed by cutting off the last 116 producers who are shipping milk to Lawson, or to cut off those whose milk contained a lower content of butter fat, or to have Lawson take the entire supply and convert into powdered milk, or to ship the surplus to the Cleveland market.

It is admitted that one of the concerns presented here is that if Lawson does not continue to accept this supply of milk from the producer members, that the Association will have to sell this milk for what they can realize and make up the difference so that the individual producer member loses nothing. The Association contracted with its members to do exactly that and while it may concern them to the extent of a loss of around $700.00 per day, it is a contingency for which they contracted to meet. The membership of the Association at present is over 1,500 — the members affected 116 — the average dues per member is between $100 and $130 per year.

The Association by contract promises to secure a market for its members but instead of shouldering its responsibility, the Association is attempting to find ways and means of unloading this burden and duty to the shoulders of Lawson, where it does not belong.

Lawson is justified in the stand it has taken in being fearful of what the Association may do to their milk supply if the Association controlled the milk producers. Practically every account in the Association News Bulletins concerning Lawson reeked with suspicion and ridicule of Lawson. As for example in the Ohio Milk Producers Bulletin for May, 1954, the following appeared:—

“The local newspaper recently broke the news that the Lawson Milk Company had dropped the milk price in their stores 2c per gallon on gallon jug containers only. The news account stated that Lawson could offer no reason for the drop except that they were making another saving possible for the consumer.

“Pure Baloney; * * * Such claims are pure nonsense * * * It is difficult for this editor to understand how producers can continue to furnish milk willingly to any buyer who would ruthlessly set about to bring ruin and destruction upon a milk market ... A company that would advertise as they did in the Friday, May 21 issue of the Hartville News that, ‘We are the pace-setter in reduction of milk prices.’ The same ad went on to say that the ‘Gallon jug plan was born during the depression when Lawson saw city dwellers driving to the country with vinegar jugs to buy unpasteurized milk from farmers because they could not afford milk at home-delivered prices.’

“Pass the hankies, please — ’tis a very sad tale indeed. — * * *

“The ‘pay’ line came at the close of the ad when the article said that the company figured that they had saved Akron and Canton consumers more than $3,000,000 dollars in a year. Probably did. It cost local farmers by themselves more than $65,000 during March, 1954 alone!

In the publication for March and April, 1957 there appeared the following articie:

Thanks For Nothin’

“Thanks for nothin’. The Lawson Milk Company form letter to milk shippers claimed that producer prices would be ‘protected.’ Big deal!”

In the March and April of 1957 Bulletin there also appears the following:—

More Baloney!

“One thing is certain. There is more baloney in the milk business than in the meat business!

“For the second time in 2Vs months, the Lawson Milk Company lowered the retail price of gallon milk * * * It’s good to know, however, that Milk-producers in Akron are protected (not by the Lawson company) but by Akron’s federal order number 60. * 1 *”

In the May-June publication, 1957, this item appeared:

Lawson Goofs

“Apparently that ‘Lawson influence’ with its depression-day retail prices goofed somewhere * * *”

In Superior Dairy Inc., Appellant, v. The Stark County Milk Producers Association, et al, Appellees, 89 Oh Ap 26, Syllabus 3:—

“It is not a violation of the Valentine Anti-trust Act of Ohio for a company organized under the Cooperative Agricultural Marketing Act of Ohio to refuse delivery of milk to a distributor until the latter agrees to terminate a policy of discounts, where the Company is under no obligation to deliver milk other than the implied obligation of the distributors to pay for such milk as delivered.”

Under this opinion, if a Co-op (Association) gained control of the milk supply in this or any other district it would be in a legal position to dictate supply and prices as long as such was not contrary to the Federal Order. The Association could under these circumstances force Lawson either to go beyond the realms of this district or even the state to get its supply or it would be driven out of business, and with the hostile attitude displayed by the Association against Lawson, that is the very thing that this Court could reasonably anticipate. The law would not tolerate such a condition to exist — for in effect its true pronouncement is that the Association has the right to refuse to deliver milk to any handler they see fit as long as there is no governing contract and in the same breath says to Lawson you have the right to discontinue taking milk from any producer you see fit whether a member of the Association or not.

The Association contends that if Lawson be allowed to drop these 116 members, it would exploit these individual farmers and drive them out of the dairy business. However, the Federal Order fixes a minimum price for which the handlers such as Lawson must pay for the milk. There is some doubt in the Court’s mind as to whether the Association has not already found an adequate market for the milk supply of these 116 members. For in one of the Association publications there appeared the following article:—

“Be calm is the advice of the Association office. Almost immediately Akron Milk Producers, Inc. (Association) secured an alternate Cleveland market for the milk — if such a market is actually needed when worse comes to worse. A Cleveland market will assure the threatened farm members of full protection of the eligible quota which they are now establishing. The Association immediately guaranteed all members at the Lawson Company that The Akron Milk Producers Inc. (Association) would stand behind its promise to provide both a market for the milk and the same blend price as is paid by Lawson to all his other producers.”

Courts when interpreting statutes are bound to take cognizance of legislative policy but this practice does not extend to the right of the Courts to make judicial legislation and read into the law, matters that are not contemplated or covered by the statutes. It is true that Cooperatives (Association) in Ohio are not given as much protection as is given in some other states, however this Court cannot because of that fact make judicial legislation. If more protection should be had, the Cooperatives (Association) should apply to the proper division of government, namely the Ohio Legislature, and not the Courts.

The Association by asking for an injunction against Lawson, which would in fact order Lawson to take milk from the producer members, is in fact seeking the Court’s aid in making a contract where originally none existed.

The Association is asking the Court to compel Lawson to continue taking milk from its 116 members but at the same time those members could quit delivering their supply to Lawson at any time they chose to do so.

If the Court were to order a contract to be made contrary to the wishes of one of the parties where in the first instance no contract existed, it would be directing specific performance of a contract to which only one party has concurred. It would in effect have the Court say, “Lawson you cannot cease to take from the Association because the producers are members thereof even though you have no contract with the Association, and at the same time say however, the Association may quit delivering milk to you, Lawson, at any time it may choose. This would be an absurd pronouncement of the law of contracts.

Bretz v. W. C. L. Insurance Company, 134 Oh St 171, the Court in its opinion on page 177 stated:—

“A Court will not decree specific performance of a contract having no existence. Courts will compel parties to perform contracts in accordance with their terms, but they have no power to and will not make contracts for persons and compel the execution of them.”

It is apparent that if the Court were to sustain the injunction and compel Lawson to accept this milk, it would require a continuing supervision by the Court and the Courts of Ohio have consistently refused to order specific performance of contracts which would require continuing supervision by the Courts.

The Association further contends that by reason of the finding of Judge Harvey made in the case of Akron Milk Producers v. Reiter and Harter Inc. et al, being Case No. 205168 in the Common Pleas Court of Summit County Ohio that this Court should hold to the same opinion. However, this opinion was never journalized and since the Court speaks through its journal entries, there is no official pronouncement in that case.

In the case of the Milk Producers Federation of Cleveland, Inc. v. The Lawson Milk Co. et al, being case No. 201238 in the Common Pleas Court of Summit County, Ohio, Judge Harvey issued a temporary restraining order (without notice) which order was later modified by agreement between the parties as a temporary order only and since the order is only a temporary one effected by agreement there is no official pronouncement in this case.

The Court finds that Lawson cut off producer members only because by contract the Association guaranteed them a market for the sale of their milk without loss to them, whereas the independent producers had no such guarantee; that Lawson was in fear that the Association would soon be in a position to force Lawson to pay more for milk or cut off its supply and force it to go to distant places for an adequate supply, or go out of business. What further evidence of justification is necessary, if there must be justification? In competitive markets business concerns have the right generally to select the parties with whom they wish to transact business and these concerns may discontinue that business at any time they wish as long as there is no governing contract.

It is therefore the opinion of this Court that:

1. Under the law the Association is a legal entity favored by law only to the extent that if the organization is established under and in conformity to the governing laws §1729.01 R. C. — §1729.28 R. C., inclusive, then the law declares that an Association is not a conspiracy, a combination in restraint, an illegal monopoly or an attempt to lessen competition or to fix prices arbitrarily but aside from this favoritism the Association is governed by General Corporation Law. (Sec. 1729.27 R. C.)

2. That there was some evidence that Lawson attempted to get some producer members to breach their contract with the Association so that insofar as this practice is concerned injunctive relief will apply as prayed for.

3. That the Court is of the opinion that Lawson may have the right in the spirit of competition and furtherance of business to persuade or indulge producer members to legally terminate their contract with the Association.

4. That there is no evidence to warrant an injunction against the haulers and others for acts as were set forth in the prayer of the petition which was referred to herein as part 2.

5. That Lawson has the right to discontinue business with the Association or Association member producers under the circumstances as were found existing.


author: By PHILLIPS, PJ.

text:
    GRANCHI, Plaintiff-Appellant, v. FINLEY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 740.
    Decided December 22, 1956.
    Metzger, McCorkhill & Metzger, Salem, Singer & Singer, Cleveland, for plaintiff-appellant.
    Brookes, Lynch & McDonald, East Liverpool, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff was involved in a collision between an automobile driven by her husband and a truck driven by defendant in opposite directions on U. S. Route 30 in Columbiana County, and allegedly injured as a direct and proximate result thereof. Plaintiff commenced an action in the court of common pleas against defendant to recover damages for such alleged injuries. In that action the jury rendered a verdict in favor of defendant upon which the trial judge entered judgment from which plaintiff appealed to this court on questions of law.

In his opening statement to the jury counsel for defendant said:—

“Now we do not mind if the jury finds that we are liable here we do not mind paying for what damage we done but we do mind paying for damage that her husband did, and, consequently, whatever you find, try to bear in mind that we are not responsible for a condition which existed before this accident ever occurred.”

Counsel for plaintiff contends that by that statement “defendant admitted liability in some amount,” and that “the trial court erred in overruling plaintiff’s motion for a directed verdict in favor of plaintiff (who was a passenger) on the pleadings and opening statement of counsel reserving to the jury only the question of the amount, if any, of damages.”

In 4 O. Jur. (2d), Section 1094, it is said:—

“It is reversible error for the court * * * to direct a verdict for the defendant because of the insufficiency of the opening statement of plaintiff’s counsel, if such statement is at least as broad as the petition and the petition states a good cause of action; * *

In K & S Realty Co. v. Rosen, et al, 47 Abs 316, paragraph 2 of the syllabus it is said:—

“In the consideration of plaintiff’s motion for judgment upon the opening statement of counsel it is the duty of the trial court to interpret the statement most favorably to defendant and to give a most liberal construction in favor of defendant, and to assume the truth of the facts stated in order to sustain the principle that every litigant is entitled to his day in court.”

“A most liberal construction in favor of the defendant” of the pleadings and opening statement of defense counsel compels us to conclude that the trial judge did not err to plaintiff’s prejudice in overruling her motion for a verdict to be directed in her favor “on the pleadings and opening statement of counsel reserving to the jury only the question of the amount, if any, of damages.”

The trial judge overruled plaintiff’s motion “to instruct the jury to ignore the remarks of defendant’s counsel in his opening statement to the effect ‘we will prove that plaintiff’s condition is due to the persecution of her husband growing out of her unfaithfulness to him,’ then failed to introduce one iota of evidence to substantiate such damaging and prejudicial statement.” Plaintiff contends that the trial judge erred to her prejudice in overruling such motion.

In the words of counsel for defendant lifted from his brief, which are supported by the evidence:—

“Appellant’s husband had discovered her infidelity, and in some manner learned the identity of the other man. * * * Employing counsel he had the guilty couple admit their guilt in the presence of the other man’s wife (R. 67). Then he took a written commitment for payment of $2,500.00 for what had happened, and had it signed by the appellant, her lover, the latter’s wife and signed it himself. This appears as a part of Exhibit 1 (R. 308).

“When the appellant’s paramour failed to pay up her husband brought action in the Common Pleas Court of Cuyahoga County for $25,000.00, announcing for all to read, and for all time, her shame and her disgrace. From there, of course, it got into the newspapers (R. 74) to be made public to their thousands of readers in addition to the jurors who ultimately tried the case. * * *

“That action was pending for trial when the collision with the Finley automobile occurred. * * *

“In our opinion, it is a refined form of torture to make a public spectacle of the admitted disgrace of any woman; and to show so little concern for the good name or respectability of one’s own wife — to place on permanent public record the name of the mother of one’s children is, in our opinion, ‘persecution’ or something lower.”

In our opinion it was a question for the jury to determine whether under all of the conditions shown by the evidence, including doctors and psychiatrists, defendant’s conduct, whether it be designated persecution or not, or the collision in which she was involved caused personality disturbances, irritability, excitability, hysterical behavior, and outbursts of temper during which she threatened her husband with a knife, and locked him out of their home.

We cannot conclude that the trial judge erred in overruling plaintiff’s motion “to instruct the jury to ignore the remarks of defendant’s counsel in his opening statement to the effect ‘we will prove that plaintiff’s condition is due to the persecution of her husband growing out of her unfaithfulness to him,’ then failed to introduce one iota of evidence to substantiate such damaging and prejudicial statement.”

Now plaintiff claims that the trial judge erred to her prejudice “in permitting defendant to introduce his Exhibit I which purported to be the petition and answer in case number 631,042 in the court of common pleas of Cuyahoga County, being the case of Edward A. Granchi v. Anthony Blashinsky (being a case for criminal conversation with plaintiff herein), when in truth and in fact, the answer which was contained in said exhibit and which answer also had attached to it, a damaging exhibit was stricken from the files and the case tried upon an amended answer.”

Plaintiff contends that the admission attached to defendant’s answer was not competent because the answer to which it was attached was later amended so as to exclude it from that other case. Perhaps it was not good pleading but it in no way detracts from its force as an admission of the plaintiff and in our opinion does not amount to fraud.

For her fourth assignment of error plaintiff claims “other errors appearing on the record” among which she claims that the trial judge should have submitted the case to the jury under the doctrine of res ipsa loquitur and failure to do so constituted prejudicial and reversible error on the part of the trial judge.

If error, in our opinion it was not prejudicial because the record discloses it was an error of omission not raised by counsel in trial. 3 O. Jur. (2d), Section 218, where it is said:—

“Counsel cannot sit by and note that the court has inadvertently omitted something in the charge that ought to be given, and not advise the court of such omission, and then thereafter predicate error thereon.”

As to whether the trial judge erred as charged with reference to submission of the case under the doctrine of res ipsa loquitur see Beeler v. Ponting, 116 Oh St 432.

The evidence fails to convince us that the jury was influenced by passion or prejudice as urged in subdivision 2 of plaintiff’s fourth assigned ground of error.

In appellant’s brief we find the following:—

“In argument to the jury, plaintiff’s counsel properly commented on the failure of defendant to call Dr. Nozik to the stand to testify as to the results of his examination, but instead, had called Dr. Elder, who made another examination at defendant’s request two years after the accident. In replying to this argument, Defendant’s Counsel made the following statement, ‘Oh, yes, they wanted to know why we did not bring in Dr. Nozik and I want to tell you why we didn’t bring him in. You have never had the experience of bringing a doctor into court. You can subpoena him, but you can’t make him come.’

“This statement was objected to, but the court overruled the objection, which ruling, we submit, was improper.”

Plaintiff’s summary of the evidence and proceedings on trial as she interprets it, listed under “conclusion” in her brief, upon which she bottomed her right to recover and were in dispute presented questions for the determination of the jury. In the state of the record we will not interfere with the verdict of the jury nor judgment of the trial judge, and do not And the trial judge erred to plaintiff’s prejudice in the respects urged. Plaintiff’s “conclusion” in her brief is as follows:—

“(a) A drinking driver.

“(b) Travelling 65 miles per hour. '

“(c) Skids 45 feet into a guard rail on his side of the road.

“(d) Veers back and forth across the road 306 feet to three feet over in opposing lane of traffic to point of collision.

“(e) Skids 96 feet further to point of rest.

“(f) Plaintiff is a passenger and is injured.

“(g) Answer does not deny liability.

“(h) Defendant’s counsel in opening statement admits liability.

“ (i) Defendant admits plaintiff’s condition exists, but claims that it is the result of the persecution by her husband. No evidence of persecution is adduced.

“(j) On the contrary, kindly considerate treatment of plaintiff by her. husband is shown.

“(k) Verdict for the defendant.”

The judgment of the court of common pleas is affirmed.

GRIFFITH and NICHOLS, JJ, concur.


author: By SKEEL, J.:

text:
    MUNZ, Plaintiff-Appellant, v. “SPOFA,” etc., Defendant-Appellee.
    Ohio Appeals, Ninth District, Lorain County.
    No. 1293.
    Decided August 20, 1953.
    Levin & Levin, for plaintiff-appellant.
    D. K. Cook, for defendant-appellee.
    (HURD and SKEEL, JJ, of the Eighth District, sitting by designation in the Ninth District.)
   OPINION

By SKEEL, J.:

This appeal comes to this court on questions of law from a judgment for the defendant entered on the verdict of a jury. The action is one sounding in contract in which the plaintiff seeks recovery of certain commissions and deposit money claimed due under the terms of such contract.

The appellee has filed a motion to strike the bill of exceptions from the file. The bill as first filed was narrative in form except as to the charge of the court and the special request to charge before argument. Exceptions were filed and, upon hearing, were sustained, the court holding the bill did “not present a true portrayal of the testimony and proceedings including cross-examination, defense motions, objections, exceptions of defendant, and so forth, and it is beyond the capacity of this court to correct same to conform with the proceedings* * *.”

The appellant requested a rehearing on the exceptions which was granted and, upon rehearing, the court vacated its former order sustaining the exceptions and disallowance of the bill and proceeded to certify as correct—

“1. All exhibits admitted or offered as appear by the bill of exceptions are true.

“2. That the bill of exceptions from page 26 on containing excerpts of testimony and special requests to charge and the charge of the court are true.

“3. That the narrative bill of exceptions from pages 2 to 26 prepared by plaintiff as amended is disallowed.”

Thereafter, counsel added nine more pages of evidence prepared by the court reporter, but which are not certified as correct upon the record.

The claims of error which are now presented are as follows:

“1. Error of the Court in giving to the jury defendant’s special instruction No. 1 before argument wherein the Court charged that the jury must return a verdict for the full amount claimed in the first cause of action or nothing.

“3. For error in the general charge given to the jury, especially on the question of the measure of damages wherein the Court failed and refused to charge the rule in Hadley v. Baxendale.

“4. For error in rejecting all testimony offered by plaintiff which made any reference to Moscow or Communism although said testimony was pertinent to the issues; and in admonishing plaintiff with reference thereto; and in instructing the jury with reference thereto.”

All other claims of error were waived in open court and not argued because of the failure or inability of the plaintiff appellant to bring to the Court of Appeals a bill of exceptions sufficiently complete to demonstrate such errors.

We find it unnecessary to pass upon the defendant appellee’s motion to strike the bill of exceptions for the reason that considering the parts of the bill of exceptions that are certified as correct, such record of the proceedings is not sufficiently complete to test the errors of which the plaintiff appellant complains.

The judgment is therefore affirmed. Exceptions noted. Order see journal.

DOYLE, FJ, HURD, J, concur.


author: Per CURIAM.

text:
    BELFAST, Plaintiff-Appellant, v. PATTERSON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3864.
    Decided October 11, 1956.
    Modarelli & Modarelli, Youngstown, for plaintiff-appellant.
    William E. Pfau, William E. Pfau, Jr., Youngstown, for defendantappellee.
   OPINION

Per CURIAM.

Plaintiff appealed on questions of law from a judgment of the court of common pleas entered upon a jury verdict for defendant in plaintiff’s action filed in that court to recover from defendant for damages to his person and automobile allegedly resulting from defendant’s negligence in the operation of an automobile on Market Street, a duly dedicated and accepted public street of the City of Youngstown, Ohio.

Plaintiff claims by pleadings and evidence that he stopped his automobile headed south on Market Street, which was at that time and for some time prior thereto had been visible and discernible to defendant who was operating an automobile in the same direction on the same street, and that while stopped defendant operated his automobile into collision with that of plaintiff.

Plaintiff testified he signalled his intention to stop his automobile and defendant testified he did not give any warning of such intention to stop.

There is evidence plaintiff stopped his automobile to avoid striking a small animal which suddenly crossed the.path of his automobile; and evidence that he stopped suddenly to greet friends standing on the street.

By assigned grounds of error plaintiff contends:—

“1. The verdict of the jury is against the manifest weight of the evidence.

“2. The admissions into evidence by the defendant, allegations and innuendoes causing prejudice and bias against the plaintiff.

“3. The court erred in not excluding the evidence of a former criminal case.

“4. The court erred in making remarks prejudicial within the hearing of the jurors.

“5. The court erred in refusing to charge the jury before arguments of counsel, certain propositions of law applicable to the cause, requested by the plaintiff.

“6. That the verdict of the jury was made under the influence of passion and prejudice.”

Defendant admits that he violated the assured clear distance ahead rule, but claims that the plaintiff violated the statutory requirements that he give a signal of his intention to stop. •

The evidence as to the manner in which the collision happened is decidedly conflicting and contradictory upon the issue of plaintiff’s contributory negligence in failing to give warning of his intention to stop thereby presenting a question for the determination of the jury as to whether plaintiff was exercising the degree of care required of him as a user of the highway.

“Negligence in motor vehicle cases, as in negligence cases generally, is the failure to exercise ordinary care so as to avoid injury to others.

“It is an obligation of the driver of an automobile to watch everything and everybody, not only in front of him but on the sides and in the rear * * *.” 6 O. Jur. (2d), Section 211, Page 428.

Considering all of the evidence, medical and otherwise, this court can not reverse the judgment of the trial court on the ground it is against the manifest weight of the evidence nor on any of the other assigned grounds of error. The judgment of the trial court is affirmed.

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.