author: By WATTERS, J.

text:
    SOLTESZ, Plaintiff, v. CARTER et al, Defendants.
    Common Pleas Court, Summit County.
    No. 170068.
    Decided August 17, 1949.

      Eugene Trunko, Akron, for plaintiff.
    Robert Brouse, Akron, for defendant.
   OPINION

By WATTERS, J.

This action is one in equity in which the plaintiff, a tenant, occupying a room in the building purchased by the defendant, as a barber shop, seeks to compel the defendant to execute a proper lease to him for a period of ten years, and to enjoin the defendant from proceeding further in a forcible entry and detainer action brought in the Municipal Court in Akron to secure possession of the store room.

The action was trie'd upon an agreed statement of facts offered in evidence and marked Court’s Exhibit X, which is made a part of this finding as though rewritten herein.

In addition there was oral testimony in this court of the plaintiff, tenant, John Soltesz, Jack Carter, the owner and purchaser who purchased the premises by deed dated July 1, 1946, jointly with one Mike Parker, who has sold out to Jack Carter, and of the seller or grantor, Samuel J. Britsch.

Carter and Parker were also tenants of Britsch when they bought the building, as was John Soltesz, who occupied a room as a barber shop and had been in possession since about January 29, 1943. Both Carter and Parker had full knowledge of Soltesz’s occupancy, but actually knew nothing of his lease until after the deal to purchase was actually consummated and the purchase money paid over to Britsch, about July 30, 1946. It will be noted that the deed was filed for record July 30, 1946.

The lease in question, it is conceded, was defectively executed. The grantor never appeared before the notary, Mr. Trunko, and never acknowledged the same. Also the lease which purports to be for a ten year term was never recorded.

Reference to the lease will also show the following — “for the term of Ten (10) - beginning on the first day of February, 1943.” No specific term is there mentioned.

Later on appears.this wording: “It is further agreed that the lessor will furnish all heat and water during the term of this lease, to-wit for a period of ten (10) years. It is further agreed that the lessee may terminate or cancel this lease at his option at any time.”

Apparently such a clause is valid (See O. Juris. Volume 24, paragraph 393, page 1144), although it ties the lessor up, but gives the lessee the right to terminate at will.

As said before, the lease was not recorded. The abstract or certificate of title prepared for the purchasers of course showed no lease. The evidence shows that the purchasers, although they had actual knowledge of the tenant’s possession, had no knowledge of the existence of the lease until after the purchase was consummated. Also Britsch, the grantor, did not apprise them of the lease until after the purchase was consummated and the purchasers had approached Soltesz in regard to raising the rent which was twenty dollars per month, and he mentioned the lease. They then asked Britsch, and he for the first time told them of the lease and brought them a copy thereof.

I have had the court reporter write up the testimony of the plaintiff, Soltesz, the tenant, and of Carter, the purchaser, and of Bertsch, the vendor, and I find no evidence of concealment or fraud by the tenant. The purchasers had full and actual knowledge of his tenancy, but did not ask him under what kind of a tenancy he held. When Britsch was asked about it, he readily admitted the lease. I think the duty, if any, was upon the purchasers with knowledge of the possession of the tenant, to make a full inquiry. But the tenant, under the Ohio law, was in a perfect position. He was in possession and the purchasers knew it. Furthermore he perhaps was not too anxious to speak out, as he under the law had his landlord bound for ten years, but could get out of the lease himself at will.

No purchaser could anticipate such a state of affairs, especially when the tenant was paying the meagre sum of twenty dollars per month with his water, etc. furnished.

THE LAW.

In the case of Robert Raitz and Company v. Dow, cited by the plaintiff in his brief, syllabi 1 and 2, 20 Circuit Dec. 284, the court did rule that although the lease being for five years and being imperfectly executed, it was binding on subsequent purchasers because the purchasers had full knowledge of the existence of said imperfectly executed lease and of all its terms. So the court ruled that equity would decree that the lease would be construed as a contract to make a lease, and ordered a lease executed on the terms originally contemplated, and ordered the forcible entry action enjoined.

This of course is far different where the only notice the purchaser has is that the tenant is in possession, but does not know of the existence of the lease itself.

It will be noted that the above case was one in equity also. That case is undoubted by the law although it seems to me it makes ineffective and useless all the recording statutes and those having to do with the proper execution of leases.

But now we turn to our own Court of Appeals to an equity case wherein the purchasers did not know of the existence of the leases, and had no knowledge of the tenant’s possession or occupancy. I refer to 19 Oh Ap, 521, Parsons v. Weinstein, et al, decided by the Ninth District Court of Appeals on June 24, 1924.

Syllabus — “In equity a lessee of real estate in actual possession thereof under a defectively executed lease for a term of three years, with the privilege of five years additional, and a lessee in actual possession of real estate under a properly executed but unrecorded lease for a term of three years, with the privilege of seven years additional, are entitled to hold possession of said real estate for the full terms of said leases against all who acquire an interest therein, although the latter did not have actual notice of the occupancy of such lessees.” (Emphasis ours.)

This case cites also 15 Oh St, 162. “A purchaser of land in actual possession of a third party, is chargeable with notice of any equitable title of the party in possession whatever the same may prove to be.”

The Parsons case goes a long way, and it will be noticed that the parties acquiring the interest did not have actual notice of the tenant’s occupancy.

This case (19 Oh Ap) in legal effect voids all the recording statutes including §8510 GC as to the matter of proper execution of leases, and §8543 GC which in substance holds that a lease for more than three years which is unrecorded, is deemed fraudulent as against a bonafide purchaser.

However the answer in Ohio is stated in 24 O. Jur., at page 779, about the middle of the page (under paragraph 48, beginning on page 777).

“While it has been said that the knowledge that will defeat the bonafide character of a subsequent purchaser * * * must be actual knowledge, and that circumstances that should put him on notice are not sufficient, it is the settled rule in Ohio that a purchaser of land which is in actual possession of a third party, is chargeable with notice of any equitable right of the party in possession, whatever the same may be. And this is so in equity at least, whether or not the subsequent purchaser had actual knowledge of the possession of the lessee. Obviously, the result of the application of this rule to the effect of the known possession of a tenant for the purpose of the recording act would be that a third person who has actual knowledge of the tenant’s possession at the time he acquires his right is not a bona fide purchaser having no knowledge at the time of purchase of the existence of the unrecorded lease, and is not a person as to whom the unrecorded lease is fraudulent.” (Emphasis ours.)

Citing Schloss v. Brown, 13 Oh Ap, 294.

Lithograph Co. v. Watt, 96 Oh St, 74.

Riley v. Rochester, 105 Oh St, 258.

This is undoubtedly the rule in equity in Ohio, but not the rule at law. Many of the cases cited by the defendant are cases at law.

See 19 Oh Ap, 521, Parsons v. Weinstein. (9th District).

53 Oh Ap, 438, R. K. O. Dist. Co. v. Film Center Realty Company.

See also 24 O. Jur., page 747, paragraph 13.

This latter case (53 Oh Ap) in the third syllabus seems to carry out the defendant’s theory in this case that at best the tenant would have a year to year tenancy only and therefore could be properly put out at the end of the year, the defendant having given notice to terminate at the end of a yearly period.

But reading further in the syllabus (3) of said case, the lessee in equity is entitled to specific performance, which means simply that in equity, according to the cases, and specifically that of our Court of Appeals, in 19 Oh Ap, 521 (supra) the recording statutes do not mean a thing, and the lessee is entitled to have specific performance of the contract to make a lease for the full term of the defective or unrecorded lease either as against his lessor or as against a subsequent purchaser, where lessee is in possession, even though the purchaser does not have knowledge of the possession of the tenant.

Accordingly the relief prayed for by the plaintiff should be granted.

Personally I am not in favor of a tenant under a defectively executed and unrecorded lease for more than 3 years being able to prevail against any purchaser who has knowledge only of the tenant’s possession and not of the lease itself. As between the original lessor and lessee I think such a rule equitable. However to apply it to a purchaser for value, with notice only of occupancy, in my opinion is, even in equity, far fetched. But I believe I have interpreted the present Ohio law as followed by our Court of Appeals correctly.

Journal entry may be drawn accordingly with exceptions.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    McPHERSON, Plaintiff-Appellee, v. McPHERSON, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 447.
    Decided May 20, 1949.
    Michael E. Norris, Troy, for plaintiff-appellee.
    Richard H. LeFevre, Troy, for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from a judgment of the Juvenile Court for Miami County, Ohio. The record discloses that on November 8, 1935, the Court of Common Pleas for Miami County, Ohio, entered a decree of divorce in favor of Mary Lee McPherson against Ronald A. McPherson, awarded custody of Alan McPherson, a minor child of the parties, to Mary Lee McPherson, and ordered Ronald A. McPherson to pay the sum of $5.00 per week to Mary Lee McPherson as support for said child until further order of the court.

On the 30th day of December, 1935, the Court of Common Pleas certified the cause to the Juvenile "Court of Miami County, Ohio, in so far as the same related to matters of support and custody of said minor child and all subsequent proceedings were before the Juvenile Court. This cause came before the Juvenile Court upon the motion of Mary Lee Tackett, formerly Mary Lee McPherson, to strike from the files the motion of Ronald A. McPherson which sought to reduce the amount of support which had accrued under the former order of the court. The court sustained the motion to strike and found the motion of Ronald A. McPherson to be' insufficient as a matter of law.

The ultimate question presented by this appeal is whether upon the granting of a decree for divorce an award for the support of a minor child, payable in weekly installments, is subject to modification as to installments which have accrued and are unpaid. No gross sum was ever fixed by the trial court and it is for this reason that the appellant urges that no right exists for a judgment in any specific sum. The trial court held in effect that the past due installments constituted a judgment which were not subject to modification.

The question presented here is not one of first impression, as only last year this court passed upon the identical question in the case of Bush v. Bush, 82 Oh Ap 255, the syllabus of which provides:

“A divorce decree, incorporating a separation agreement of the parties, which agreement provides for the payment of weekly support money for their children until they reach the age of eighteen years, constitutes such a judgment that execution may be levied thereon for past due installments without first carrying into separate formal legal judgment the total amount of the installments, then due under the terms of the decree.”

The decision in this case cites the authorities relied upon and it would serve no useful purpose to again restate our reasons for so holding. We might add several additional authorities which are not cited in the Bush case, supra, which we think are also controlling. In Armstrong v. Armstrong, 117 Oh St 558, the syllabi provide:

“1. A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit clause of the Federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony.

“2. Where a divorce was regularly decreed by a Kentucky court and a sum payable in installments was awarded as alimony and for the support and maintenance of children of the parties and there has been no modification of such judgment it will be enforced by the courts of Ohio under the full faith and credit clause of the Federal Constitution.”

The only distinction of substance that we are able to find between the instant case and the Armstrong case is that in the latter the action to recover the default installments of alimony was predicated upon an alimony decree made by the Circuit Court of Campbell County, Kentucky. If it should be found that under the laws of the State of Kentucky a different rule would prevail than in Ohio, then it would naturally follow that the Armstrong case would not be accepted as a precedent. A reading of the entire case will disclose that the Supreme Court did not predicate its holding upon any peculiar provisions of the law, but rather announced the principle upon the rule of reason that accrued alimony payments are in the nature of judgments and are not subject to modification, unless the entry making the order specifically provides that past due as well as subsequent payments may be modified by the Court making the original judgment; also in the case of Aukland v. Aukland, 17 O. O. 387, this Court of Appeals followed the ruling in the Armstrong case, supra, syllabi 3 and 4 providing:

“Where an order has been made to pay a stipulated amount in installments, an action may be brought to recover all defaults in payments.

“Default alimony payments are in the nature of judgments and are not subject to modification unless the entry making the order specifically provides that past due as well as subsequent payments may be modified by the court making the original judgment.”

The case of Gilbert v. Gilbert, 83 Oh St 265, also supports the views we have taken. In this case the court makes a distinction where the decree is for alimony alone, from one granting a divorce and alimony, the second syllabus of which provides:

“A decree for alimony payable in installments in a suit for alimony alone in one state will not support an action as on a final judgment for a fixed sum in another state.”

In the opinion in this case at page 269, Johnson, J., comments:

“In rendering a decree for alimony alone the court necessarily has in view that the marital contract still exists; that the parties are still bound by all its mutual obligations; that they may become reconciled and that the grounds and the desire for the allowance may be wiped out at any time. A decree in such a case is continually subject to modification, while in rendering a decree for divorce and alimony the court determines the ultimate relation of the parties and fixes the amount and the mode of payment of any money or property allowance to the wife. And when there is a divorce in a proceeding in which the wife is in court asserting her rights and asking for affirmative relief, she is concluded by the decree in that proceeding.

It follows, of course, that if alimony claims are adjusted in the decree in such a proceeding the parties are equally bound.”

We recognize that the holdings of the various Courts of Appeals in this state are not uniform on this question; that Meister v. Day, 20 Oh Ap, 224, Collins v. Collins, 79 Oh Ap 329, and several others are in conflict with our view and upon proper application we will so certify.

We are of the opinion that there is no error in the record and the judgment is affirmed.

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


author: By HUNSICKER, J.

text:
    INLAND PROPERTIES CO., Appellant, v. UNION PROPERTIES, INC., et, Appellees. RICHMOND IMPROVEMENT CO., Appellant, v. UNION PROPERTIES, INC., et, Appellees. YORK-LAKE CO., Appellant, v. UNION PROPERTIES, INC., et, Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos 20905-20906-20907.
    Decided June 28, 1948.
    Wm. T. Arnos and R. W. Halliday, for appellants.
    Harold O. Ziegler and Sylvester Marx, Cleveland, for appellees Union Properties, Inc., and Gordon H. Robertson, Vice President and General Manager, etc.
    Hugh S. Jenkins, Atty. Geni., Columbus, and Harold O. Ziegler, Special Counsel, Cleveland, for appellees H. Earl Cook, Supt. of Banks, and Gordon H. Robertson, Special Deputy Supt. of Banks in charge of liquidation of The Union Trust Co.

      Andrews, Hadden & Putnam, Cleveland, for appellees Union Bank of Commerce Co. and John K. Thompson, President.
   OPINION

By HUNSICKER, J.

The appeals on questions of law in cases 20905, 20906 and 20907 were argued jointly, and submitted to the court as a single case.

The trial court sustained a demurrer to each of the third amended petitions, as amended by interlineation, filed by the defendants (appellees), and rendered final judgment on such demurrers in favor of the defendants (appellees). It is from those judgments that the plaintiffs have appealed to this court on questions of law.

The principal question before us is: Do the third amended petitions as amended by interlineation, state facts which set forth causes of action?

These petitions are based on the claim that the plaintiff was a depositor in The Union Trust Company, of Cleveland, Ohio, which on June 15, 1933, was taken over by the superintendent of banks of Ohio for the purpose of liquidation, under authority of the Banking Act (§710-1 GC; et seq).

It is difficult in reading the several petitions filed in the case to determine exactly the nature of the claims alleged, and a detailed recitation here would serve no useful purpose. In each petition, the claim is for a money judgment against The Union Trust Co. and others for 'deposits made with the trust company in the year 1929 and alleged to have been withdrawn “illegally and fraudulently” by an officer of the plaintiff companies. The petitions further allege that the deposits of money as made by plaintiff company now appear “on the books of said The Union Trust Company, obscurely,” and that these plaintiffs were not mailed a “notice to it as required by §710-90 GC, notifying it or calling upon it to make legal proof of its claim at the time specified in said §710-90, Subsection 3.”

It is evident from a reading of the petition that plaintiffs were not depositors whose names appeared on the books of The Union Trust Company for such deposits had, as the pleader alleges, been withdrawn before the superintendent of banks took over the liquidation of the trust company. The allegation that they were depositors whose names appeared “obscurely” is in effect that the plaintiffs were not creditors whose names appeared on the books of the trust company when taken possession of by the superintendent of banks.

Since the names of the plaintiffs did not appear as creditors on the books of the trust company, no notice by mail was required to be given as is provided by subsection 3 of §710-90 GC.

Nowhere in the petition is there any allegation which says that a claim was filed by the plaintiff with the superintendent of banks, as is also provided for in subsection 2 of §710-90 GC, nor is there any allegation that the claim has been rejected.

From a reading of the Banking Act (§710-90 GC, et seq), it is readily apparent that, before one claiming to be a depositor-creditor may participate in the distribution of the assets of the trust company, he must present a claim to the superintendent of banks, who then will accept or reject the claim so made. If the claim is rejected by the superintendent of banks, then the predicate is laid for filing an action in a court of competent jurisdiction to enforce such claim.

The plaintiffs have not alleged that they filed proofs of claim, and have not alleged that such claims have been rejected before these actions were filed, and hence they do not state good causes of action in their petitions.

We do not find the other claimed error prejudicial.

The judgments of the Common Pleas Court are affirmed.

DOYLE, PJ, and STEVENS, J, concur.


author: By GESSAMAN, J.

text:
    STATE v. WESTERN UNION TEL. CO.
    Common Pleas Court, Franklin County.
    No. 174412.
    Decided May 4, 1949.
    Hugh S. Jenkins, Herbert S. Duffy, Attys, Geni., Kenneth B. Johnston, Asst. Atty. Geni., Harry G. Fitzgerald, Jr., Special Counsel, Columbus, for plaintiff.
    Vorys, Sater, Seymour & Pease, Columbus, John H. Waters,Geni. Atty., Wm.-G. H. Atcheson, Asst. Geni. Atty., New York City, for defendant.
    Frederick G. Hamley, Austin L. Roberts, Jr., Washington, D. C., for National Association of Railroad and Utilities Commissioners, amicus curiae.
   OPINION

By GESSAMAN, J.

This case is before the Court upon the demurrer of the plaintiff to the answer. The ground upon which plaintiff bases its demurrer is that the answer is insufficient in law to constitute an answer to the relief prayed for by the plaintiff.

The action has been brought by the State of Ohio through the Attorney General on behalf of the Public Utilities Commission of Ohio (hereinafter referred to as P.U.C.O.). The petition alleges in substance that the defendant is a common carrier of messages in intra-state commerce within the State of Ohio and as such is subject to the jurisdiction of the State of Ohio and to the regulation of the P.U.C.O.; that on or about April 1, 1947, it came to the attention of P.U.C.O. that the defendant had by application to the Federal Communications Commission (hereinafter referred to as F.C.C.) proposed to discontinue, abandon and substitute its Class 1-B telegraph offices at Bellefontaine, Delphos, Lebanon, Marysville, Mt. Gilead and Ottawa, Ohio, and to substitute service therein by local telephone companies under the management of the Telephone Service Company of Ohio; that the defendant had made no application therefor to the P.U.C.O. and such proposed action “affects local business of transmitting telegraphic messages between points in Ohio;” that such proposed action might be and could be unjust, unreasonable and discriminatory and the rights and interests of citizens of Ohio appeared to be affected thereby and that it is the duty and obligation of P.U.C.O. to determine whether such proposed change is “an abandonment in service requiring application to, hearing by, and order of said Utility Commission;” that on April 22, 1947, upon its own motion P.U.C.O. ordered the defendant to show cause why an application for said proposed action should not be filed with P.U.C.O. “as required by Sections 504-3, General Code;” that a hearing was had upon said order at which time the defendant appeared by counsel for the purpose of denying the jurisdiction of the State of Ohio and P.U.C.O. over the proposed change; that “after proper hearing and consideration of all issues involved therein,” P.U.C.O. found that the proposed change “is abandonment, substitution or change in service as contemplated by Sections 504-2 and 504-3u of the General Code, requiring application to and approval of the P.U.C.O. insofar as transmitting of intra-state messages are concerned”; that P.U.C.O. further directed the defendant to file an application with and receive approval of the P.U.C.O. “prior to making the contemplated or proposed abandonment or change in service to be rendered to the public in the State of Ohio;” that the defendant did not appeal from any of said orders and that therefore they have become final and effective; that the defendant has entered into two contracts with the Telephone Service Company of Ohio by which it proposes to carry into effect the anticipated changes.

It is further alleged that the defendant filed its application No. T-D-770 on December 27, 1946, with F.C.C. under Section 214 of the Communications Act of 1934, 47 U.S.C.A. § 214, wherein a request was made for authority of F.C.C. to make the proposed change; that as a result of said application and the hearing thereon, F.C.C. issued a proposed report on February 13, 1948, recommending the proposed change and that an appropriate order and authorization for the same will be issued.

It is further alleged that defendant has and will continue to refuse to comply with the above orders of P.U.C.O. and that unless restrained by this Court, it will consummate its above-mentioned agreements with Telephone Service Company of Ohio and will immediately proceed to make the proposed change already referred to.

Plaintiff prays that the defendant be enjoined from proceeding under said contracts with the Telephone Service Company of Ohio and from making the proposed change “without first complying with the lawful order of June 17, 1947, of the P.U.C.A. and the laws of the State of Ohio.”

In its answer the defendant admits that the action is brought upon behalf of the P.U.C.O.; that the order of April 22, 1947, was issued by P.U.C.O.; that a hearing was held thereon on May 14th and 15th, 1947, at which time defendant appeared by counsel for the purpose of denying jurisdiction of the State of Ohio and P.U.C.O.; that P.U.C.O. found that the proposed change “is abandonment, substitution or change in service”; that P.U.C.O. directed the defendant to file an application with and receive approval of the P.U.C.O. for the proposed change; that defendant has entered into two contracts with the Telephone Service Company of Ohio to which we have already referred and that the defendant has filed its application No. T-D-770 with F.C.C. for authority to make such change and that the proposed report of F.C.C. was issued as alleged in the petition.

The defendant generally denies all allegations of the petition which it has not expressly admitted to be true. The defendant alleges in its answer that it is and for many years has been engaged as a common carrier in the transmission of messages for hire in and between all of the states of the United States and is engaged in inter-state, intra-state and foreign commerce; that on December 27, 1946, it filed its application, to which we have already referred, with F.C.C.; that the services “for the discontinuance of which defendant made application are services rendered in the transmission of messages and service incidental thereto in inter-state and intra-state commerce” and “the intra-state services and the inter-state services are in all respects alike except in point of origin or destination and said services are furnished by means of offices, equipment and personnel, identical use of which is made in the transmission of messages incidental thereto, whether such messages and incidental service are in intra-state commerce or inter-state commerce”; that in its application with F.C.C. the defendant proposed to “continue to render its services in the transmission of messages and services incidental thereto in inter-state and intra-state commerce, such services to be provided through teleprinter agency offices operated by local telephone companies, each under the management of the Telephone Service Company of Ohio”; that subsequent to the filing of said application F.C.C. caused notice of the filing of the application and the date of the hearing thereon to be served upon the Governor of Ohio and P.U.C.O. with leave to both of them to be heard in said proceedings and that P.U.C.O. entered its appearance and did participate in the hearing of said application; that on or about June 7, 1948, F.C.C. issued its report and found that neither the present nor future public convenience and necessity will be adversely affected by the granting of the application of the defendant and thereupon entered its order and authorization granting of the same. Allegations are also made relative to 47 U.S.C.A. §214(a — c) to which we shall later direct our attention. The defendant further alleges that P.U.C.O. has no power or authority to regulate or attempt to regulate “the discontinuance, reduction, impairment or abandonment of the services furnished by defendant in the six communities already referred to”; that whatever the power and authority of P.U.C.O. may have been prior to March 6, 1943, the Congress of the United States by the enactment of the communications Act of March 6, 1943, has preempted the field of regulation of the telegraph business and industry, not only in inter-state commerce but likewise in intra-state commerce insofar as the same concerns the discontinuance, reduction or impairment of telegraph service and the sole and ex-elusive regulatory body having jurisdiction over such phase of the telegraph business or industry is now the Federal Communications Commission”.

The defendant further alleges that since the adoption of the Communications Act of 1934 (Federal) as amended by the Act of March 6, 1943, 47 U.S.C.A. §151 et seq., and with respect to the provisions of the General Code of Ohio which plaintiff claims govern the defendant in the proposed change; “if those provisions are construed as requiring defendant telegraph company to apply to and to obtain from the P.U.C.O. permission to discontinue, reduce or impair telegraph service, they are in direct conflict with the Commerce clause of the Constitution of the United States and with the Federal Communications Act as amended”; that the June 17, 1947 order of P.U.C.O. is in direct conflict with the Commerce clause and also with the Federal Communications Act, as amended. To this answer, as we have already pointed out, the plaintiff has demurred on the ground that the facts alleged in the answer are insufficient to constitute a defense.

The questions raised, both of which have been discussed very fully by counsel for both parties and by counsel for the National Association of Railroad and Utilities Commissioners, amicus curiae, in support of the demurrer, are these:

1. Do §§504-2 and 504-3 GC require the defendant to secure P.U.C.O. approval for the particular changes which the defendant proposes to make?

2. Has Congress pre-empted the field of regulation of such cases?

As to Question No. 1

The pertinent provisions of §§504-2 and 504-3 GC are as follows:

“Sec. 504-2 GC. * * * and no public utility as defined in §614-2a GC furnishing service or facilities within the state of Ohio, shall abandon or be required to abandon or withdraw any * * * telegraph line * * * or any portion thereof * * * or the service rendered thereby * * * except as provided in §504-3 GC. Any * * * public utility violating the provisions of this section shall forfeit and pay into the state treasury not less than one hundred ($100.00) dollars, nor more than one thousand ($1,000.00) dollars, and shall be subject to all other legal and equitable remedies for the enforcement of the provisions of this act.”

Sec. 504-3 GC. * * * any such public utility * * * desiring to abandon or close, or have abandoned, withdrawn or closed for traffic or service all or any part of such line or lines, * * * shall first make application to the public utilities commission * * *. Upon the hearing of said application said commission shall ascertain the facts, and make its finding thereon, and if such facts satisfy the commission that the proposed abandonment, withdrawal or closing for traffic or service is reasonable, having due regard for the welfare of the public and the cost of operating the service or facility, they may allow the same; otherwise it shall be denied, or if the facts warrant, the application may be granted in a modified form.

If P.U.C.O. has any jurisdiction over the proposed change, that jurisdiction must be found in §§504-2 and 504-3 GC, commonly referred to as the Miller Act. That fact is admitted by all counsel concerned with this case.

It appears to the Court to be quite clear that the inhibition imposed by the General Assembly in §504-2 GC, is against the abandonment by a public utility of (as far as we are here concerned) a telegraph line or a portion thereof or of the service rendered thereby, for the word “abandon” is specifically used in that section. There is no reference to an alteration or to a change or to a substitution of the means to be used for rendering the service. The word “abandon” is again used in §504-3 GC, and as far as we are concerned in this case, the only positive requirement demanded of a public utility in that section is that before it abandons or closes any part or all of its line or lines, application therefor (that is, for an abandonment or a closing of the line or lines) must be made to P.U.C.O. and its consent therefor obtained. Therefore, it appears to the Court that the question here presented is whether or not the proposed change by the defendant constitutes an abandonment.

As we have already pointed out, and there is no dispute about the facts, the proposed changes at the towns to which we have already. ref erred, will amount to the following: The defendant will close its own offices, known as Class 1-B offices, and the teleprinter machines and their operators will move from the present offices of the defendant to space set aside for them in the nearby telephone company offices, and the same direct telegraph services now tied into these machines in the Class 1-B offices will be tied into them in their new locations. All messages, both incoming and out-going, will be transmitted over the same wires and machines as before and will be sent and received by the same operators. The only difference will be that the offices of the defendant in these respective towns will be closed; that certain supervisory and other help now employed therein will be eliminated or transferred and that the operators of the teleprinter machines and the messengers, etc. will be paid directly by the telephone company instead of by the defendant. In all other respects the service now rendered by the defendant to these communities will be continued. The means by which telegraph service has been rendered to these communities will be slightly altered. We consider it important to bear in mind that the proposed change by the defendant constitutes merely a change in the means by which the service is rendered but does not constitute a change in the service.

Numerous cases have been cited to the Court by counsel for the plaintiff, in all of which, jurisdiction by P.U.C.O. was sustained by the Supreme Court of Ohio. We shall not add to the length of this opinion by indulging in a detailed review of these cases. Suffice it to say that all of them involve a change in or abandonment of the service itself or a part of it. We are of the considered opinion that the situation here involved is very similar to that which was presented to the Supreme Court in the case of the Pittsburgh & West Virginia Ry. Co. v. Public Utilities Commission of Ohio et al., 120 Oh St 434, 166 N. E. 372. In that case the Wheeling and Lake Erie Railway Company applied to the P.U.C.O. for authority to abandon its then existing Ontario Street passenger station in the City of Cleveland and a portion of its railroad tracks extending northerly from Eagle Avenue, a distance of 1035 feet to the northerly terminus of its road in said city. The reason for the proposed change was that The Wheeling and Lake Erie Railway Company had entered into an agreement with the Cleveland Union Terminals Company for passenger station facilities and service in the new Cleveland Union depot. This new union depot which was then in the process of construction was adjacent to the Ontario Street station of Wheeling and Lake Erie and immediately north thereof. The portion of the Wheeling and Lake Erie tracks proposed to be abandoned had theretofore been used for the sole purpose of reaching the Ontario Street station. The application was dismissed by P.U.C.O. on the ground of want of jurisdiction. Appeal was taken from this order to the Supreme Court by the Pittsburgh and West Virginia Railroad Company, a connecting carrier and also a stockholder of Wheeling and Lake Erie. In considering the question involved, the Supreme Court had this to say, 120 Oh St at pages 436 and 437, 166 N. E. at page 374 of its opinion:

“We are of the opinion that the Public Utilities Commission was correct in its conclusion that, in view of the fact that the applicant does not propose to discontinue operation into a downtown passenger station in Cleveland, or withdraw or impair its service to the public in that respect, but, on the contrary, proposes to secure and furnish to the public passenger station facilities and service, §§504-2 and 504-3 GC, have no application to the situation thus presented. The very evident purpose of these statutory provisions was to secure and safeguard the interests of the public, and prevent the abandonment or withdrawal of a service, thereby depriving the public of facilities and service theretofore enjoyed, and to which it was entitled.” (Emphasis ours.)

And further in the same opinion at page 437 of 120 Oh St, at page 373 of 166 N. E. the Court says:

“Certainly no one would argue that an application need to be made to the Public Utilities Commission for permission to erect a new passenger station, or that it was contemplated to confer on the Public Utilities Commission any such jurisdiction by statute. The plan proposed is no more an abandonment of passenger station facilities than would be the substitution of a new passenger station by the Wheeling and Lake Erie upon the very location now occupied by its passenger station”.

The case at bar presents, as we have said, a similar situation. The proposed change does not contemplate or involve the termination of telegraphic service either to or from the communities involved. It proposes only to change the station in each of these communities at which messages are both sent and received. In that respect it is similar to the substitution of one passenger station for another as was involved in the Wheeling and Lake Erie case. The same messages can be sent and the same messages can be received as under the present arrangement. The station at which they are sent and received will be the offices of the local telephone company instead of the present Class 1-B offices of the defendant. Therefore, while the present office or station is being abandoned, that abandonment affects only the means by which telegraphic messages are sent and received but does not affect the telegraphic service itself, either incoming or outgoing.

The situation and question here presented are so similar to those involved in the Wheeling and Lake Erie case, supra, that we cannot escape the conclusion that the proposal by Western Union involves only a relatively minor change in the means by which telegraphic messages are sent and received and does not affect the telegraphic service to and from these communities and therefore does not cfjhstitute an abandonment or withdrawal of a service which the Miller Act was enacted to prevent. It, therefore, follows that there is no duty upon Western Union to make any application to P.U.C.O. for the proposed change and since the duty does not exist, it therefore follows that P.U.C.O. was without any authority to issue its order of April 22, 1947, in which it attempted to require Western Union to show cause why an application for said proposed action should not be filed with P.U.C.O. With respect to that order, we feel that we should point out that counsel for the plaintiff has not referred the Court to any authority lodged with P.U.C.O. for the adopting of the order of April 22, 1947, even granting that P.U.C.O. had jurisdiction in the matter.

Therefore, our answer to the first question propounded above is that §§504-2 and 504-3 GC do not require the defendant to secure P.U.C.O. approval for the changes which the defendant proposes to make and for the reasons which we have given, the demurrer is overruled.

As to Question No. 2

It is urged by counsel for the defendant that the intra-state and inter-state services of Western Union being inextricably intertwined, the intra-state service must be controlled in order to prevent an unreasonable burden on inter-state service. In the answer the defendant has alleged that Congress, by the Act of March 6, 1943, “has pre-empted the field of regulation of the telegraph business and industry, not only in interstate commerce but likewise in intra-state commerce insofar as the same concerns the discontinuance, reduction or impairment of telegraph service and the sole and exclusive regulatory body having jurisdiction over such phase of the telegraph business or industry is now the Federal Communications Commission.”

Therefore, counsel for the National Association of Railroad and Utilities Commissioners, amicus curiae, state the question in this manner at page 2 of their brief:

“The primary issue which is before this court is whether the authority and jurisdiction of the Public Utilities Commissiqn of.the.State of Ohio to regulate.the discontinuance, reduction, impairment or abandonment of intra-state telegraphic service or facilities, has been superseded by Federal Regulation.”

The consideration of this question requires the consideration of several sections of the Federal Communications Act as amended on March 6, 1943, 47 U.S.C.A. §151 et seq.

The purples of the Act have been stated by Congress in Section 151 which reads in part as follows:

“For the purpose of' regulating inter-state and foreign commerce in communication by wire * * * so as to make 'available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide, and world-wide wire * * * communication service with adequate facilities at reasonable charges, for the purpose of the national defense, for the purpose of promoting safety of life and property through the use of wire * * * communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire * * * communication, there is hereby created a commission to be known as the ‘Federal Communications Commission’ which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this chapter.”

Congress then provided as follows in Section 152:

“(a) The provisions of this chapter shall apply to all interstate and foreign communication by wire * *

Section 214 provides in part as follows:

“(a) * * * No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby. * * *

“(b) Upon receipt of an application for any such certificate, the Commission shall cause notice thereof to be given to, and shall cause a copy of such application to be filed with, the Secretary of the Army, the Secretary of the Navy, and the Governor of each State in which * * * such discontinuance, reduction, or impairment of services is proposed, with the right to those notified to be heard; and the Commission may require such published notice as it shall determine.

“(c) The Commission shall have power to issue such certificate as applied for, or to refuse to issue it, or to issue it for a portion or portions of * * * discontinuance, reduction, or impairment of service, described in the application, or for the partial' exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. After issuance of such certificate, and not before, the carrier may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the issuance of such certificate and proceed with the * * * discontinuance, reduction, or impairment of service covered thereby.”

From a consideration of these sections it is quite obvious that the absolute control of communication by wire in interstate and foreign commerce has been lodged by Congress in the Federal Communications Commission. Granting that this is correct, it is urged by counsel for the state that since Western Union in the operations here involved is engaged not only in inter-state commerce but also in intra-state commerce, it must not only secure the approval of F.C.C. but also that of the P.U.C.O. It is the opinion of the Court that the answer to that contention is obvious on its face, for if counsel for the state is correct, then one of two situations could result; (1) Western Union could be prevented from complying with the certificate issued by F.C.C. by an adverse decision by P.U.C.O., or (2) although complying with the certificate issued by F.C.C., Western Union could be compelled by P.U.C.O. to also continue the operation of its Class 1-B offices thereby nullifying the effect and purpose of the F.C.C. certificate. The power of P.U.C.O. to. require the defendant to apply for approval would carry with it the power to deny the right to make the change. In either event the very purpose of the Federal Communications Act could be nullified by or at least controlled by anyone of the state 'agencies of the forty-eight states.

A large number of authorities have been submitted to the Court by counsel in this case, many of which we feel are not decisive of the question involved. In the opinion of the Court the case in point is that of State of Colorado v. United States et al., 271 U. S. 153, 46 S. Ct. 452, 70 L. Ed. 878. That suit was instituted by the State of Colorado, to enjoin and set aside, in part, an order of the Interstate Commerce Commission issued February 11, 1924. The order was a certificate by that commission permitting the abandonment by the Colorado and Southern Railway Company of a branch line located wholly within the State of Colorado. The railway company was a Colorado corporation. It owned and operated in intra-state and inter-state commerce a railroad system located partly in Colorado and partly in other states. The branch line in question was constructed under the authority of Colorado and was acquired by the company. It was a narrow gauge line and was physically detached from other lines of the company but it was operated in both intra-state and interstate commerce as a part of the system of the company by means of connections with other railroads. The certificate to abandon the line was granted by the Interstate Commerce Commission on the ground that the local conditions were such that public convenience and necessity did not require continued operation; that for years operation of the branch had resulted in large deficits and for other reasons, one of which was that “continued operation would constitute an undue burden upon interstate commerce” 271 U. S. at page 160, 46 S. Ct. at page 453. The Attorney General of Colorado contended, among other things, that neither the Interstate Commerce Act nor Transportation Act of 1920, 49 U.S.C.A. §1 et seq., took away from the state the right to regulate and control its intra-state commerce and to the extent that they, or either of them attempted to do so, they were unconsitutional, 271 U. S. at pages 154 and 155, 46 S. Ct. 452. The opinion in this case was written by Mr. Justice Brandéis and was unanimous. In discussing the claim of the attorney general, we find the following at pages 162, 163 and 164 of the opinion, in 271 U. S., at page 453 of 46- S. Ct.:

“In the case at bar no question of the reasonableness of the state’s action can arise, because the state has not issued any order; it has merely protested against the Commission’s releasing this Colorado corporation from the primary duty voluntarily assumed of maintaining some service on the branch. This, the Commission cannot do as respects intra-state commerce. Transportation Act 1920 did not purport to take from the state its powers to control intra-state commerce. Nor did it confer upon the Commission power to release a corporation chartered by the state from its primary obligation to furnish service. If paragraph 18 of section 1 should be construed as authorizing the Commission to do so without the consent of the state, the provision would be unconstitutional, Compare [State of] Texas v. Eastern Texas R. Co., 258 U. S. 204, 217, 42 S. Ct. 281, 66 L. Ed. 566. Such is the argument.

“The argument rests upon a misconception of the nature of the power exercised by the Commission in authorizing abandonment under paragraphs 18-20. The certificate issues not primarily to protect the railroad, but to protect interstate commerce from undue burdens or discrimination. The Commission by its order removes an obstruction which would otherwise prevent the railroad from performing its federal duty. Prejudice to interstate commerce may be effected in many ways. One way is by excessive expenditures from the common fund in the local interest, thereby lessening the ability of the carrier properly to serve interstate commerce. Expenditures in the local interest may be so large as to compel the carrier to raise reasonable interstate rates, or to abstain from making an appropriate reduction of such rates, or to curtail interstate service, or to forego facilities needed in interstate commerce. Likewise, excessive local expenditures may so weaken the financial condition of the carrier as to raise the cost of securing capital required for providing transportation facilities used in the service, and thus compel an increase of rates. Such depletion of the common resources in the local interest may conceivably be effected by continued operation of an intra-state branch in intra-state commerce at a large loss.

“The sole objective of paragraphs 18-20 is the regulation of inter-state commerce. Control is exerted over instra-state commerce only because such control is a necessary incident of freeing inter-state commerce from the unreasonable burdens, obstructions or unjust discrimination which are found to result from operating a branch at a large loss. Congress has power to authorize abandonment, because the state’s power to regulate and promote intra-state commerce may not be exercised in such a way as to prejudice interstate commerce. The exertion of the federal power to prevent prejudice to interstate commerce so arising from the operation of a branch in intra-state commerce is similar to that exerted when a state establishes intra-state rates so low that intra-state traffic does not bear its fair share of the cost of the service (Railroad Commission of Wisconsin v. Chicago, Burlington & Quincy R. Co., 257 U. S. 563, 42 S. Ct. 232, 66 L. Ed. 371, 22 A.L.R. 1086; Nashville, Chattanooga & St. Louis Ry. v. Tennessee, 262 U. S. 318, 43 S. Ct. 583, 67 L. Ed. 999), or when the state authorities seek to compel the erection of a union station so expensive as unduly to deplete the financial resources of the carriers (Railroad Commission v. Southern Pacific Co., 264 U. S. 331, 44 S. Ct. 376, 68 L. Ed. 713), or when one railroad seeks to construct an intra-state branch line, which will deplete its own financial resources or those of another interstate carrier (Texas & Pacific Ry. Co. v. Gulf, Colorado & Santa Fe Ry. Co., 270 U. S. 265, 46 S. Ct. 263, 70 L. Ed. 578). The jurisdiction exercised by the Commission in these cases is in essence that which was invoked in The Shreveport Case. [Houston, E. & W. T. R. Co. v. United States] 234 U. S. 342, 34 S. Ct 833, 58 L. Ed. 1341, a power to prevent unjust preference to particular intra-state shippers or localities at the demonstrated expense of inter-state commerce. But there is a broader basis for federal control.

“This railroad, like most others, was chartered to engage in both intra-state and inter-state commerce. The same instrumentality serves both. The two services are inextricably intertwined. The extent and manner in which one is performed, necessarily affects the performance of the other. Efficient performance of either is dependent upon the efficient performance of the transportation system as a whole.”

And also the following language at pages 165 and 166 of the opinion, in 271 U. S., at page 455 of 46 S. Ct.:

“The exercise of federal power in authorizing abandonment is not an invasion of a field reserved to the state. The obligation assumed by the corporation under its charter of providing intra-state service on every part of its line within the state is subordinate to the performance by it of its federal duty, also assumed, efficiently to render transportation services in inter-state commerce. There is no contention here that the railroad by its charter agreed in terms to continue to operate this branch regardless of loss. Compare Railroad Commission v. Eastern Texas R. Co., 264 U. S. 79, 44 S. Ct. 247, 68 L. Ed. 569. But even explicit charter provisions must yield to the paramount power of Congress to regulate inter-state commerce. [State of] New York v. United States, 257 U. S. 591, 601, 42 S. Ct. 239, 66 L. Ed. 385 Because the same instrumentality serves both, Congress has power to assume not only some control but paramount control insofar as inter-state commerce is involved It may determine to what extent and in what manner intra-state service must be subordinated in order that interstate service may be adequately rendered. The power to make the determination inheres in the United States as an incident of its power over inter-state commerce. The making of this determination involves an exercise of judgment upon the facts of the particular case. The authority to find the facts and to exercise thereon the judgment whether abandonment is consistent with public convenience and necessity, Congress conferred upon the Commission.”

At page 168 of the opinion in 271 U. S., at page 456 of 46 S. Ct. it is said that

“The sole test prescribed is that abandonment be consistent with public necessity and convenience. In determining whether it is, the Commission must have regard to the needs of both intra-state and inter-state commerce.”

The Colorado case of course dealt with a railroad and with the Transportation Act but a comparison of that Act with the Communications Act discloses a marked similarity to the extent that one might even conclude that many of the provisions of the Communications Act were copied from the Transportation Act. A consideration of the provisions of the two acts has led the Court to the conclusion that the principles enunciated in the Colorado case are applicable to the case at bar, that is to say, that since in the communities involved, both intra-state and inter-state messages are now received and sent by means of the same wires and other facilities of Western Union, the two services are inextricably intertwined and the extent and manner in which one is performed necessarily affects the performance of the other. It follows, therefore, that the efficient performance of either is dependent upon the efficient performance of the system as a whole. Therefore, the power and authority of F.C.C. supersede that of P.U.C.O. for the reason that “the state’s power to regulate and promote intra-state commerce may not be exercised in such a way as to prejudice inter-state commerce”. 271 U. S. at page 163, 46 S. Ct. at page 454.

It is urged on behalf of the state that the language of the Federal Communications Act does not evidence any intent of Congress to supersede state authority. The intent of Congress was to regulate communications by wire in inter-state and foreign commerce for the purposes set forth in Section 151, supra, and while the express intent of Congress to supersede state authority is nowhere found in the Act, it necessarily follows, applying the principles of the Colorado case, that where the services, both intra-state and inter-state, are inextricably intertwined, the state’s power is superseded to the extent that it is necessary to regulate inter-state commerce for the purposes and in the manner specified in the Federal Communications Act.

It is the opinion of the Court, therefore, that in view of the conditions existing in the communities here involved and particularly the fact that the services of sending and receiving both intra-state and inter-state messages are inextricably intertwined, the authority of the F.C.C. with respect to the proposed change is final and that Western Union is under no duty to apply to P.U.C.O. for its permission to make the change. In this respect, the power and authority of F.C.C. supersede that of P.U.C.O. — if any authority of the latter in the premises, did exist. Our answer to question number two, therefore, is in the affirmative.

For the reasons given, it is our opinion that the answer states sufficient facts to constitute a defense. The demurrer is overruled.


author: By ROSS, PJ.: MATTHEWS, J.: By ROSS, PJ.:

text:
    SAMS, Plaintiff-Appellant, v. ALBERS SUPER MARKETS, INC., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7085.
    Decided May 31, 1949.

      Waite, Schindel & Bayless, Philip J. Schneider, Cincinnati, for plaintiff-appellant.
    John M. McCaslin, Robert Adair Black, Richard H. Pennington, Cincinnati, for defendant-appellee.
   OPINION

By ROSS, PJ.:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County entered in conformity to a verdict instructed for defendant, at the conclusion of all the evidence.

Certain facts are apparent from the record. The plaintiff was a customer of the defendant which operated a grocery store in which the customers served themselves. In process of acquiring certain articles which she desired to purchase, she proceeded down one of the aisles containing various types of saleable merchandise. She slipped and fell when her foot came in contact with a quantity of syrup spilled out of a broken glass bottle. Pieces of glass still remained in deposit of syrup on the floor. It is in evidence that an employe of the store had made some effort to clean up the syrup and had placed boxes about the area after so doing, and that no one was stationed nearby to warn customers of any danger existing in the area.

The clerk testified:

“ What was the first thing that you had to do with anything in connection with that accident on that morning, Fred-

“A. Well, I saw the liquid had broken—

“Q. Keep your voice up and talk as loud as you can.

“A. I saw the bottle of liquid had been broken and I immediately picked up as much of the glass as I could with two pieces of cardboard and a broom and I put the pieces of glass and as much of the liquid as I could pick up and I put these large toilet tissue boxes around the area and I took the pieces of glass and the liquid that I had on the cardboard to the back room where I picked up a mop and rinsed it out with hot water several times and went back on the floor and saw the boxes had been moved and sort of pushed aside and Mr. Schmitt and the lady were standing there and I continued picking up the, mopping up the liquid that had been broken on the floor.

“Q. Now about how long a period was it from the time you put these toilet tissue cases around the spot and left to go to the store room and the time that you got back with your mop? How long a period was it, would you say?

“A. Oh, two or three minutes.”

Now it is apparent that the defendant had notice of the existence of the syrup on the floor, by reason of the knowledge of its employe of such fact.

It is also apparent that the defendant through its .employe took certain measures to remove the syrup, which, obviously, judging by the result, was a menace to the safety of customers. It appears also that the defendant, through its employe, left' a portion of the syrup and glass on the floor and went elsewhere, and that some precaution was taken to guard the area. This is giving the defendant, rather than the plaintiff, the most favorable construction of the evidence.

It cannot be claimed, nor is it contended that the presence of the syrup on the floor was not the proximate cause of plaintiff’s injuries. The contrary is true. The evidence is not in conflict upon this question. The plaintiff fell when she slipped on the syrup. There is no evidence indicating she was guilty of contributory negligence. So that the question presented is: — Did the defendant, through its employes, use reasonable care to remove the cause of the injury to plaintiff, after becoming aware of its existence? This involves a consideration of two phases of the situation: — (1) the measures used to remove the syrup (2) the care taken to guard the area. Stating it another way, it was a question whether or not the defendant, through its employes, used the care which a reasonably prudent person would use under the same or similar circumstances to prevent injury to the plaintiff. Certainly, this would be a question for the jury’s determination. The trial court considered that only a question of law was involved, and inferentially held by its decision that the care exercised by the defendant through its employes was adequate. In this, the trial court usurped the function of the jury, who were well qualified to judge what, under the circumstances, was reasonable care. The average person serving on a jury would be well acquainted with the perils incident to walking about a grocery store and fully able to judge what would be reasonable care in avoiding harm to customers.

It is to be remembered that the function of the jury is not confined to the decision of factual conflicts, but also includes the duty to reach a determination between conflicting inferences from the evidence, even though the facts are not in conflict. See: 39 O. Jur., p. 807, “Trial” Section 186. Keesecker v. McKelvey Co., 141 Oh St, 163.

This case is not one of those where the question involves constructive notice to the operator of the store, or his employes through lapse of .time after the menacing condition is created. As the defendant states in its brief: “The fact is that the boy Fred Schmidt knew of the spot before Mrs. Sams fell, so that it makes no differ epee as to what the store manager is alleged to have said.” This brings up the contention of the appellee that certain statements of the clerk and store manager are hearsay and should have been excluded from the evidence. In this contention, the defendant is correct. The statements were narrative in character, relating to a situation existing some time before the plaintiff’s fall. Their admission is justified on no exception to the rule against the admission of hearsay evidence.

No comment has been made as to the Ohio cases cited, because they do not involve the problem here presented.

A case somewhat similar in principle is that of Smith-Kasson Co. v. Dirr, 41 Oh Ap, 385. In that case, as here, the question was, did the defendant, through its employes use reasonable care to avoid injury to the plaintiff. This is a jury question, and the court committed error, prejudicial to the plaintiff in instructing a verdict for the defendant. The judgment should be reversed and the case remanded for a new trial.

Judgment reversed, and case remanded.

ROSS, PJ, & HILDEBRANT, J, concur in syllabus, opinion & judgment.

MATTHEWS, J, concurs in separate memorandum.

MATTHEWS, J.:

(Concurring)

While I concur in the judgment of reversal, I do not want to leave the impression that even if the uncontradicted evidence disclosed the placing of an adequate barrier around the danger spot, still the plaintiff would be entitled to have the issue submitted to the trier of the facts.

When the trial court instructs a verdict for the defendant, the proper approach of a reviewing court is to inspect the record to determine whether there is substantial evidence to support all the elements of the plaintiff’s cause of action. And in determining that question, every reasonable inference in favor of the plaintiff must be drawn. If, when so interpreted, there is no substantial evidence to support one or more of the elements of the plaintiff’s cause of action, the judgment should be affirmed. If there is substantial evidence to support all the elements, the judgment should be reversed.

In the case at bar, the plaintiff’s testimony supports all the elements of her case and particularly negligence in failing to guard the dangerous condition in the aisle. She was asked:

“Q. How about the areaway for walking?

“A. It was definitely not blocked off.

“Q. I want you to estimate if you can the width of the unobstructed walk-way.

“A. Oh, about a yard, about three feet — I would say, approximately. I cannot just say to the number of inches.”

In other parts of her testimony are statements that the aisle where this syrup had been spilled was not obstructed. Her son who was with hgr at the time corroborates her testimony as to the inadequacy of the guard or obstruction.

This testimony, it seems to me, makes it clear that the issue must be submitted to the jury, and, for that reason, I concur in the reversal.

SUPPLEMENTAL OPINION

No. 7085. Decided June 20, 1949.

By ROSS, PJ.:

Counsel for the defendants rely upon the statement of the upon his second assignment of error, to-wit: “The court erred in excluding testimony regarding expenses, when under the particular circumstances of this case the wife could recover therefor.”

Ordinarily, the husband is primarily responsible for the household expenses and the necessary medical bills incurred by reason of his wife’s injury or illness. 21 O. Jur., “Husband & Wife” sections 29, 38, pages 356, 365. However, a wife living with her husband may assume primary liability for such expenses. Heym v. Juhasz, 45 Abs, 571. 13 O. Jur., “Damages”, section 42, p. 117.

On retrial, the plaintiff should be permitted to prove if she can, a personal obligation to assume the debts created by her injury and illness, independent of her husband’s primary liability for same.

It must appear, however, that special circumstances exclude application of the general rules hereinbefore noted.

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


author: By McCLELLAND, PJ.

text:
    DALGARN et, Plaintiffs, v. LEONARD, Admr. et, Defendants.
    Probate Court, Franklin County.
    No. 129447.
    Decided December 7, 1948.
    Joseph J. Poorman, for plaintiffs.
    James B. Yaw, Richard Addison, Columbus,'for defendants.
   DECISION ON APPLICATION FOR DETERMINATION OF HEIRSHIP

OPINION

By McCLELLAND, PJ.

This matter comes before the Court upon the Petition of Clifford H. Dalgarn and Nellie Caulkins, brother and sister respectively of Josephine Leonard, deceased, and Dorothy Brown and Bernice Priest, daughters of Bernard Dalgarn, deceased brother of the decedent.

Plaintiff alleges that Josephine Leonard died intestate on or about June 25, 1948, and that on July 1, 1948, the defendant Wallace W. Leonard, was duly appointed administrator of the estate of said decedent, and that Wallace W. Leonard is the surviving spouse of said Josephine Leonard, deceased.

Plaintiffs further allege that on or about the 3rd day of October 1938, the defendant Wallace W. Leonard and Josephine Leonard were married in Winchester, Virginia, and that shortly prior to the marriage an antenuptial agreement was entered into by said parties whereby it was agreed that neither party would inherit from the other but that their respective property would descend by right of inheritance to the next of kin of said decedent as though said surviving spouse did not exist.

Plaintiffs further allege that said antenuptial agreement was in full force and effect on June 25, 1948, the date of the death of Josephine Leonard, and that Wallace W. Leonard has represented himself to this Court to be the sole heir of said decedent. Plaintiffs pray that the Court should declare them to be the sole heirs of Josephine Leonard.

To this petition an Amended Answer was filed by Wallace W. Leonard, as Administrator, and also by himself as an individual, in which Amended Answer he uses the following language:

“That he admits that the plaintiffs, Clifford H. Dalgarn and Nellie Caulkins are brother and sister respectively of Josephine Leonard, deceased; that Dorothy Brown and Bernice Priest are daughters of Bernard Dalgarn, brother of Josephine Leonard; that said Bernard Dalgarn died prior to June 25, 1948; that Josephine Leonard died intestate on June 25, 1948; and that on July 1, 1948, the defendant was duly appointed Administrator of the Estate of Josephine Leonard by this Court, and that he is the surviving spouse of said Josephine Leonard.

Defendant, further answering, admits that on or about the 3rd day of October 1948, he and the said Josephine Leonard were married as alleged in the petition.

Defendant further says that he and the said Josephine Leonard made an agreement providing that each of the parties thereto would respectively have, hold and possess their individual property, free from any claims or right of inheritance, and that such agreement should continue until such time as each would be satisfied that the marriage about to be entered into would be successful, and their marital relations would be congenial, and until such time as they would mutually agree to the cancellation and discharge of such agreement.

Defendant further answering, says that on or about the first day of July, 1947, said parties to the agreement determined that said marriage was successful, and that their marriage relations were congenial and said parties thereupon mutually agreed, to, and did cancel and discharge said agreement.

Defendant further answering, denies each and every allegation in the petition contained not hereinbefore specifically admitted to be true or specifically denied.

Defendant further says that on June 25, 1948, the date of the death of Josephine Leonard, there was no agreement in existence, and that Wallace W. Leonard, the surviving spouse of said decedent, is the sole heir of Josephine Leonard and is entitled to all his legal rights as such, and was and is the sole heir and next of kin of the said Josephine Leonard, deceased.”

To the Amended Answer the plaintiffs filed a Reply in which they deny all the averments thereof save and except such as are admissions of plaintiff’s petition.

When the matter came on for trial the plaintiff offered and submitted the Amended Answer of the defendants, and rested. Counsel for the defendants then moved that the motion be dismissed for want of proof, taking the position that the Amended Answer hereinbefore referred to constituted a general denial, and further contended that it was incumbent upon the plaintiffs to prove the existence of the said contract at the date of the death of Josephine Leonard. The Court overruled the motion of the defendants and held that the Amended Answer did not constitute a general denial, and held that the Amended Answer did admit the truth of allegations pertaining to the substantive portions of the contract.

The Court further held that it was not necessary that the plaintiffs prove the existence of the contract at the time of the death of the decedent. In support of this statement the Court relies upon the text contained in Vol. 20 American Jurisprudence, page 205, Sec. 207, wherein the author uses the following language:

“It is well established that when the existence of a person, a personal relation, or a state of things is once established by proof, the law presumes that the person, relation, or state of things continues to exist as before, until the contrary is shown, or until a different presumption is raised from the nature of the subject in question. The question as to the presumption of continuance of certain facts or conditions is largely a matter resting within the sound discretion of the trial court, to be decided in the light of the facts and circumstances of the particular case. The law will not presume the continuance of a wrong.”

The author above quoted cites a number of cases to sustain his position.

It is the opinion of the Court that the allegation in plaintiff’s petition with reference to the continuance of the contract up until the death of the decedent was surplusage. When the contract was established it is presumed to have continued in existence until shown to the contrary.

The defendants in their Amended Answer admit such a contract was entered into, but they also plead the additional fact that the parties could mutually agree to terminate the contract, and did mutually agree to and did terminate the contract. As far as the allegation that the parties could mutually terminate the contract, the Court is of the opinion such allegation is entirely surplusage. It is fundamental that two parties to a contract may mutually agree to terminate the same, but the allegation that the parties did terminate the contract by mutual agreement is new matter.

Counsel for the defendants rely upon the statement of the author of the section on Evidence, contained in 17 O. Jur., p. 147, Section 117. Upon an examination of this authority, we find that the court holds that if the defendant in a contract action couples with his general denial an allegation of a contract substantially different from the contract sued on, which is denied in the reply, or specifically enumerates several instances of failure to perform, does not cast the burden of proof upon the defendant.

In our opinion, that rule is not applicable in the case at bar. In the case at bar, the defendants admit such a contract was entered into as pleaded by the plaintiff. In the Amended Answer they also plead new matter in that the parties did mutually agree to and did terminate the contract during their married life.

The defendants also rely upon the case of The List & Son Company v. Chase, reported in 80 Oh St, page 42. In that case the defendant denied the making of the contract pleaded and set up in his answer an entirely different contract from that set forth in the petition. In our opinion this case is not determinative of the case at bar.

The case of Dykeman v. Johnson, reported in 83 Oh St, at page 126, is also relied upon by the defendants. In this case the suit was on an account. The defendant denied that the case arose on an account and pleaded a specific contract. That case, therefore, is not determinative of the case before the Court.

Reliance is also had by the defendant in the case of Wigmore Company v. Chapman, reported in 113 Oh St, page 682. This case arose upon an alleged contract for the sale of real estate. The defendant not only denied the existence of the contract pleaded, but set up an entirely different contract. This case is one not parallel to the case now-before the Court.

This Court thoroughly agrees with the law set forth in the various authorities cited, but in our opinion the authorities cited are not determinative of the question which the Court is now deciding.

It is therefore our opinion that the Court made the proper ruling at the bench, and required the defendant to proceed .with his testimony.

A great portion of the testimony adduced by the defendant was of conversations of various persons held with the decedent, who was a party to the contract. The Court did admit these conversations, subject to its final determination as to whether or not the testimony was admissible under the exception to the hearsay rule. Under the common law hearsay testimony was entirely excluded, but there are various exceptions to that rule which will permit conversations with deceased persons to be admitted.

One of the exceptions under which conversations with deceased persons may be admitted is that conversations are part of the res gestae. It is obvious that these conversations cannot be admitted under that exception.

Another exception is that the conversations must be a declaration against interests. This has given the Court considerable difficulty, and, upon examining a number of authorities we have come to the conclusion that the declarations cannot be admitted under that section.

Even though the Court would attempt to consider those declarations, there was no positive evidence whatsoever as to an agreement between the parties to terminate the contract.

We also make the further observation that even though the declarations were admissible the declaration must have been by one, who if living, would have been competent to testify. In support of this proposition the Court refers to Jones on Evidence, Third Edition, Section 333.

Now going to the weight of the evidence. It is fundamental that in order to prove a cancellation of a contract there must be a preponderance of admissible evidence. The record is silent as to any actual agreement between the parties as to the cancellation of this contract. It is all circumstantial, and, in our opinion, of slight probative value. It is therefore our opinion that by the admission of the Amended Answer the contract was made, it was presumed to continue in existence until the death of Josephine Leonard unless there.was proof to the contrary. As we have heretofore stated, there was not sufficient evidence to convince this Court that the parties mutually agreed to terminate the contract.

It is therefore the finding of the Court that the contract was in existence at the death of Josephine Leonard, and that by the terms thereof her surviving spouse is not entitled to any interest in or part of her estate. An order may be drawn accordingly.


author: By MILLER, J.

text:
    HARRIS, Plaintiff-Appellant, v. WOODS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County,
    No. 4233.
    Decided February 2, 1949.

      Howard Gillard, Columbus,-for plain tiff-appellant.
    Henry A. Reinhard, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from the Court of Common Pleas of Franklin County, Ohio. The action was one for damages for trespass and the alleged removal by the defendant of the plaintiff’s property from a furnished room occupied by the plaintiff, the defendant being the landlord. At the close of all of the evidence the defendant moved for an instructed verdict, which motion was sustained. This ruling of the Court is the basis of all of the assigned errors.

The record discloses that the defendant obtained a judgment in the Municipal Court of Columbus, Ohio, in a forcible entry and detention action for the possession of the property; that on September 2, 1947, an alias writ of restitution was issued and that on the same day the plaintiff’s property was moved out of the room into a public hallway in the building; that some of this property disappeared to the plaintiff’s damage in the sum of $100.00.

The determinative question raised during the course of the trial was, who made the eviction; was it made by this defendant or was it made by the bailiff of the Municipal Court under the alias order of restitution? The record discloses that there was no return made on this alias writ by the bailiff. The plaintiff testified that the defendant told him “I put your stuff in the hall”. This was all of the evidence offered by the plaintiff connecting the defendant with the eviction. The plaintiff was not present at the time and his wife, who was present, was not called as a witness.

The record discloses further that when the defendant was called as a witness in his own behalf, he testified that two bailiffs from the Municipal Court came to make the eviction, one of whom was a Mr. Davis. They requested from him help to carry the things out, and other help not being available he himself helped them. This evidence was not contra to what the defendant testified on direct examination when he told them “I carried the stuff out”, but adds to it by explaining under what authority he acted. The statement is silent as to the manner or means by which entry was gained into the premises, although it might carry an inference of an unlawful entry. This inference, however, was overcome when the defendant testified that he acted under the instructions of the bailiff, With this uncontroverted explanation we are of the opinion that the plaintiff failed to offer any evidence on one of the material allegations of the petition, and the motion for an instructed verdict was properly sustained.

We find no error in the record and the judgment is affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.


author: By ROSS, PJ.:

text:
    SAALFELD, Plaintiff-Appellee, v. SAALFELD, Defendant-Appellant.
    Ohio Appeals, First District, Clermont County.
    No. 186.
    Decided July 5, 1949.

      Ely, White & Davidson, Batavia, for plaintiff-appellee.
    James W. Walker, Batavia, for defendant-appellant.
   OPINION

By ROSS, PJ.:

This is an appeal from a decree of divorce entered by the Court of Common Pleas of Clermont County.

The contention of the defendant appellant is that the plaintiff had not acquired a bona fide residence in Ohio for one year prior to the filing of her petition for divorce, as required by §11980 GC.

Sec. 11980 GC, provides in part — “Except in an action for alimony alone, the plaintiff must have been a resident of the State at least one year before filing the petition.”

The residence required is domiciliary in character. Glassman v. Glassman, 75 Oh Ap, 47. That is, residence for one year prior to the filing of the petition by plaintiff must be accompanied by an intention to make Ohio her permanent home. A temporary residence, unaccompanied by such intention, no matter how long it may be extended, is ineffective to present compliance with the requirements of the statute. Id. When it appears that a person has once possessed an established domicil, the presumption of fact is that such domicil continues. In order to dissipate such presumption, it is necessary to prove by a preponderance of the evidence that such person has (1) intended to change such domicil; (2) has intended to select a new domicil; ((3) has accompanied such intention with acts indicating a bona fide selection of a new domicil. Village of Indian Hill v. Atkins, et al., Court of Appeals, Hamilton County, No. 7109, announced July 5th, 1949.

Rivery person must be domiciled somewhere. Until a new domicil is selected and occupied as such, the status in the original domicil is retained. Id. In the instant case, the plaintiff was unquestionably domiciled prior to 1942 in Sisters-ville, West Virginia. She came to Ohio and took up a course of nursing training in Christ Hospital in the City of Cincinnati, August 25, 1942. She remained in training until February, 1946. She married the defendant in Kentucky, March 17, 1946. The defendant was domiciled in Kentucky at that time, and has always retained such domicil. She traveled from one Army Camp to another with her husband, who was a Captain in the Air Corps. No permanent domicil was acquired by the plaintiff during that period.

In October, 1948, the plaintiff and her husband acquired a domicil in Clermont County, Ohio. The petition was filed December 10, 1948. The issue involving the domicil of the plaintiff hinges upon her intention at the time she was in Nurses’ training in Cincinnati. She was asked by the Court: “Now you claim you are a resident of the State of Ohio since 1942?” Her answer was: “Yes, sir.” This is no stronger than the sworn allegations of her petition. No corroborative evidence appears in the record. On the contrary, it appears that as late as 1948, she was attempting to vote in West Virginia, which is entirely inconsistent with a conviction that she was a resident of Ohio, that is, domiciled therein. Certainly, if she had retained a consistent intent that Ohio should be her permanent home, she would not have considered voting in West Virginia.

The evidence leaves much to be desired in the way of certainty and scope. It leaves the court in a state of uncertainty, and in view of the burden resting upon the plaintiff to sustain her statutory residence in Ohio for one year prior to filing her petition, it must be concluded that such evidence as appears in the record renders the decree of the court one not sustained by the weight o'f the evidence, but contrary thereto.

The case of Glassman v. Glassman, 75 Oh Ap, 47, supra, has been cited by counsel. It is to be noted that in that case the wife entered the court with a presumption of jurisdictional domicil in her favor, and that no evidence was introduced to show that such domicil had been relinquished — the sole reason for refusing her the jurisdiction of the court being based upon the two fictions — (1) that the husband officer re^tained the domicil possessed upon entering the service; and (2) the common law fiction that the wife takes the domicil of her husband on marriage. The holding in the Glassman case is that a clear, factual situation, showing bona fide domicil cannot be set aside by fictions, if such course will produce an injustice.

The evidence does show that the plaintiff at the time of filing her petition had been domiciled in Clermont County for some months, but for less than a year.

In view of the evidence showing an actual residence in Ohio for four years or more, the domicil of the plaintiff at the time of filing the petition and her positive declaration in the record that Ohio has been her permanent home, it is the conclusion of the Court that this Court would not be justified in here entering judgment for defendant, but, on the contrary, that the decree of the trial court should be reversed and the case remanded for a new trial, which is so ordered.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: Per CURIAM.

text:
    BROWN v. WACKMAN.
    Ohio Appeals, Second District, Madison County.
    Decided June 15, 1949.
    C. C. Crabbe, Garek & Sillman, Columbus, H. H. Crabbe, London, for plaintiff-appellee.
    Wiles & Doucher, Columbus, Forrest E. Sidener, Jr., London, for defendant-appellant.
   OPINION

Per CURIAM.

Submitted on motion of appellant to certify the judgment in this case to the Supreme Court as being in conflict with Buddenberg v. Kavanaugh, 11 Oh Ap 252, Court of Appeals of Cuyahoga County. The syllabi of the Buddenberg case hold,

“It is the duty of a driver of an automobile to stop his car when for any reason he cannot see where he is going.”

and that,

“Where a petition recites that plaintiff was blinded by the lights of an approaching machine so as to be unable to see the street ahead of him, and that while so driving he collided with another machine negligently left in the street, the contributory negligence of the plaintiff is apparent and there is nothing to submit to the jury.”

The facts as developed showed that the plaintiff did not stop his machine but changed its course and thereupon the accident occurred. There is no finding that the plaintiff was making any attempt to stop as is developed in the instant cause. Manifestly, there is a period between the time when a person prepares to stop and the moment when the car comes to rest. It was the claim here that it was during the period of time that the car was being brought to a complete stop that the accident occurred.

We are also referred to Becker v. Dayton Power and Light Company, 56 Oh Ap 140, 10 N. E. 2d 36, an opinion by a member of this court. In the Becker case the object with which the plaintiff came in contact was a Power and Light Pole which was not in the street but on the pavement thereof which was not separated from the street by a curb. We determined that under the physical facts appearing there was no issue as to the discernibility of the pole, the object which was struck. In the instant case we are of opinion that there was such an issue.

The motion will be denied.

HORNBECK and WISEMAN, JJ, concur.

MILLER, PJ, dissents. •