author: By. WOESTE, J.:

text:
    FLOYD & CO., Inc., Plaintiff, v. CINCINNATI GAS & ELECTRIC COMPANY, Defendant.
    Common Pleas Court, Hamilton County.
    No. A-128100.
    Decided July 31, 1953.

      Cors, Scherer, Hair & Hartsock, Gorman, Silversteen & Davis, Ragland, Dixon' & Murphy, Cincinnati, for plaintiff.
    Peck, Shaffer & Williams, Cincinnati, for defendant.
   OPINION

By. WOESTE, J.:

This case is before the Court upon demurrer to the petition. This petition admittedly presents an unusual if not a unique claim for damages. It alleges that the plaintiff, Floyd and Company, dealer, seller and installer of gas space heating equipment suffered a loss of profits, which it further alleges it would have enjoyed by the sale of such equipment over a period of time, if the defendant had not violated certain emergency orders of the Public Utilities Commission of Ohio, appertaining to the distribution and consumption of the available gas supply to the consumers of that commodity in the State of Ohio.

Because of its genetic legal characteristics as a cause of action, the petition is quoted verbatum.

“Now comes the plaintiff, Floyd & Co., Inc., and says that it is a corporation organized and existing under the laws of the State of Ohio, with its principal place of business located at 1616 Madison Road, Cincinnati, Ohio; and that it is engaged primarily in the business of selling, installing and servicing gas and electric appliances and space heating equipment, at wholesale and retail.

“Plaintiff says that the defendant, The Cincinnati Gas & Electric Company is a corporation organized under the laws of the State of Ohio, with its principal place of business located at Fourth and Main Streets, Cincinnati, Ohio, and that it is engaged in the business of supplying electricity for light, heat or power purposes to consumers, and also in supplying natural and other gas for power and heating, including space heating in Cincinnati and vicinity, and is engaged in the business of a public utility as defined in §§614-2 and 6I4-2A GC, and as such, subject to the statutes of Ohio regulating public utilities and the rules, regulations and orders of the Public Utilities Commission of Ohio.

“Plaintiff further says that on or about the 3rd day of October, 1947, The Public Utilities Commission of Ohio, under Docket No. 13618, issued an Emergency Gas Order directed to and mandatory upon all public utility companies in the State of Ohio furnishing natural gas to consumers thereof, a copy of which is attached hereto, incorporated herein by reference, and marked Exhibit ‘A’; that on or about the 1st day of April, 1948, the said The Public Utilities Commission of Ohio issued a Second Emergency Gas Order, supplementing the original order, which is attached hereto, incorporated herein by reference, and marked Exhibit ‘B’; that on or about the 5th day of October, 1948, said The Public Utilities Commission of Ohio issued a Third Emergency Gas Order, supplementing the previous orders, which is attached hereto, incorporated herein by reference, and marked Exhibit ‘C’; that on or about the 25th day of January, 1949, said The Public Utilities Commission of Ohio issued a Fourth Emergency Gas Order, supplementing the previous orders, which is attached hereto, incorporated herein' by reference and marked Exhibit ‘D’; that on or about the 6th day of April, 1949, said The Public Utilities Commission of Ohio issued a Fifth Emergency Gas Order, supplementing the previous orders, which is attached hereto, incorporated herein by reference, and marked Exhibit ‘E’; that on or about the 6th day of September, 1949, said The Public Utilities Commission of Ohio issued a Sixth Emergency Gas Order, supplementing the previ'ous orders, which is attached hereto, incorporated herein by reference and marked Exhibit ‘F’; and that on or about the 12th day of September, 1950, said The Public Utilities Commission of Ohio issupd a Seventh Emergency Gas Order, supplementing the previous orders, which is attached hereto, incorporated herein by reference, and marked Exhibit ‘G.’

“Plaintiff further says that, under the rules and provisions of the said Orders of The Public Utilities Commission of Ohio, defendant was required to refuse to furnish gas for additional space heating equipment, new space heating equipment, or conversion equipment until and unless the prospective consumer should, prior to the connection of said equipment to the gas service lines of defendant, apply for and obtain a permit in writing from defendant authorizing such use; and that said Orders further require defendant, if the consumer fails to obtain said approval or permit, to notify said consumer to disconnect such equipment within ten (10) days and, upon his failure to do so, to discontinue the entire supply of natural gas to such consumer until the equipment is disconnected.

“Plaintiff further says that immediately upon the issuance of said Emergency Order, as hereinabove set forth, and from time to time thereafter, the defendant notified this plaintiff that a supply of gas would be refused to any prospective consumer for space heating unless and until a written permit was first obtained by the consumer prior to the installation of space heating equipment; and if any installations were made without a permit being first obtained that the defendant company would shut off the supply of gas to said consumer.

“Plaintiff says that acting in accordance with the orders of The Public Utilities Commission and the representations of the defendant company, the plaintiff complied at all times with the rules, regulations and orders of The Public Utilities Commission and the aforesaid rules, regulations, and directions of the defendant company made in pursuance thereof, and that it refused to install space heating equipment for consumer customers unless and until said consumers had first obtained written permits from defendant for such installations (and so advertised in newspapers circulating in Greater Cincinnati).

“Plaintiff says that the defendant, The Cincinnati Gas & Electric Company has failed, refused and neglected to comply with and enforce the mandatory order of The Public Utilities Commission of Ohio as hereinabove set forth, in the following respects, to-wit:

“1. Defendant permitted the installation of approximately Nine Thousand (9,000) space heating equipment installations during the year 1948 in the Cincinnati area without written permits first obtained as required by said orders and the rules and regulations of defendant in pursuance of said orders, despite the fact that defendant had knowledge of said unlawful and unauthorized installations.
“2. Defendant permitted the installation of approximately Fifteen Thousand (15,000) space heating equipment installations during the year 1949 in the Cincinnati area without written permits first obtained as required by said orders and the rules and regulations of defendant in pursuance of said Orders, despite the fact that defendant had knowledge of said unlawful and unauthorized installations.
“3. Defendant permitted the installation of approximately Eight Thousand (8,000) space heating equipment installations during the year 1950 in the Cincinnati area without written permits first obtained as required by said orders and the rules and regulations of defendant in pursuance of said Orders, despite the fact that defendant had knowledge of said unlawful and unauthorized installations.
“4. Defendant, in violation of said orders, has failed, refused and neglected to direct the consumers who have made such unlawful and unauthorized installations to disconnect such space heating equipment and discontinue such service, or m any other manner to enforce sáid orders of The Public Utilities Commission of Ohio.
“5. Defendant in violating the aforesaid orders of The Public Utilities Commission has discriminated against this plaintiff in permitting installations to be made without approval, and has fraudulently caused this plaintiff, by failing to enforce the orders, to lose business and customers by reason of its acts and omissions.
“Plaintiff further says that, if the defendant had acted as required by the said Orders of The Public Utilities Commission of Ohio as hereinabove set forth and discontinued the supply of natural gas to those consumers who made unlawful and unauthorized installations of space heating equipment as aforesaid, the natural gas supplied to said installations would then have been available for lawful and authorized installations of space heating equipment.
“Plaintiff says that during the year 1948 the plaintiff installed two hundred fourteen (214) space heating equipment installations in the City of Cincinnati, and that the profit plaintiff made on each such installation was $84.89. Plaintiff says that if the defendant company had complied with and enforced the aforesaid Orders of The Public Utilities Commission of Ohio that the plaintiff would have installed or been able to install six hundred ninety-three (693) additional space heating equipment units at a like profit, but that by reason of defendant’s violations of said orders aforesaid, plaintiff was unable so to do, all to plaintiff’s damage in the sum of Fifty-Eight Thousand Eight Hundred Twenty-Eight and 77/100 ($58,828.77) Dollars.
“Plaintiff says that during the year 1949 the plaintiff installed six hundred ninety (690) space heating equipment installations in the City of Cincinnati, and that the profit plaintiff made on each such installation was $84.89. Plaintiff says that if the defendant company had complied with and enforced the aforesaid Orders of The Public Utilities Commission of Ohio that the plaintiff would have installed or been able to install one thousand three hundred ninety-five (1395) additional space heating equipment units at a like profit, but that by reason of defendant’s violations of said orders aforesaid, plaintiff was unable so to do, all to plaintiff’s damage in the sum of One Hundred Eighteen Thousand Four Hundred Twenty-One and 55/100 ($118,421.55) Dollars.
“Plaintiff says that during the year 1950, the plaintiff installed three hundred eighty-seven (387) space heating equipment installations in the City of Cincinnati, and that the profit plaintiff made on each such installation was $84.89. Plaintiff says that if the defendant company had complied with and enforced the aforesaid orders of The Public Utilities Commission of Ohio that the plaintiff would have been able to install three hundred twenty-eight (328) additional space heating units at a like profit, but that by reason of defendant’s violations of said orders aforesaid, plaintiff was unable so to do, all to plaintiff’s damage in the sum of Twenty Seven Thousand Eight Hundred Forty-Three and 92/100 ($27,843.92) Dollars.
“Plaintiff says that this action is instituted under the provisions of §614-68 GC, and that the actual damages set forth in paragraphs 9, 10, and 11 are Two Hundred Five Thousand Seven Hundred Seventy-Three and 36/100 ($205,-773.36) Dollars, but that by reason of the provisions of §614-68 GC, plaintiff is entitled to treble the amount of damages sustained in consequence of the violation, failure and omission by the defendant to comply with the orders of the Public Utilities Commission herein set forth.
“WHEREFORE plaintiff prays damages against the defendant in the sum of Six Hundred Fifteen Thousand Two Hundred Eighty-Two and 72/100 ($615,282.72) Dollars and for its costs herein expended.”

To facilitate the test as to whether or not these emergency orders of the P. U. C. O., alleged to have been violated, are actionable, Exhibit A attached to the petition and made part thereof, and which is typical of all the orders involved, with one exception, is quoted also.

SUPPLEMENTAL EMERGENCY ORDER

“On September 29, 1947, this matter came on for further hearing pursuant to the Commission’s Order of September 15, 1947, at which hearing further testimony was received, and at which representations were made by members of the public of Ohio municipalities and of representatives of affected business interests.

“WHEREUPON, the Commission on the basis of the evidence presented at said hearing of September 15, 1947, and the further evidence presented on September 29, 1947, finds that:

“The general public, the municipal representatives, business representatives and all interested parties were represented and afforded an opportunity to be fully heard;
“Due notice of the hearing of this matter was given by telegram to all natural gas companies in Ohio known by the classifications ‘A,’ ‘B’ and ‘C,’ and all such companies were present and afforded an opportunity to be heard fully;
“The unprecedented demand for gas and the inability of the utilities and their suppliers to provide facilities to make additional gas available to consumers in the State of Ohio has created an emergency affecting the health, safety and welfare of the people of the State of Ohio which will continue to prevail at least during the coming winter 1947-1948;
“Such emergency arises in part from the inability of Ohio utilities having sources of supply outside the state of Ohio to secure full performance of contracts to deliver gas during the coming winter season 1947-1948 from such sources;
“During the winter season 1946-1947 not only where large industrial gas consumers curtailed much of the time in accordance with this Commission’s Administrative Order No. 46, but at frequent intervals extensive curtailment of many other smaller commercial consumers became necessary and on peak days curtailment of domestic gas use had to be solicited and enforced by the distributing utilities in Ohio;
“During the winter 1946-1947, a comparatively mild winter, with substantially all industrial consumption curtailed, with resultant loss of employment, the domestic shortage reached the total of well over 100 million cubic feet per peak day with an average mean temperature never lower than 10 degrees. At one time over 47,000 domestic gas users in Ohio were entirely without gas service;
“The major distributing utilities in Ohio have from time to time adopted Rules and Regulations with the approval of this Commission calculated to meet this emergency by imposing restrictions and curtailments upon the use of gas for space heating purposes. These Rules and Regulations were not uniform, and the lack of uniformity has led in many instances to uncertainties and confusion;
“The major natural gas companies have during the period 1946-1947, expended large sums of money in an effort to improve their capacity to produce, receive, transmit and deliver natural gas to their consumers in Ohio. These programs could be classified generally as follows;
“(1) An accelerated new drilling program has practically taxed the maximum capacity of Ohio fields to produce. New areas for the storage of natural gas under ground were developed and expanded. Sixty-seven (67) wells were drilled in existing storage areas to facilitate the speedy withdrawal of gas so stored.
“(2) New large diameter gas transmission lines have been installed and are in the process of completion, adding over 350 miles to the capacity of these companies, at a cost of over $25,000,000.00. Additional compressor facilities have been installed to the extent of the utmost capacity of all transmission facilities that could possibly be provided.
“(3) One company has expended a quarter of a million dollars in improving its water gas plant for use on peak days. Four large propane-air plants having a productive capacity of 81 million cubic feet per day for three to four peak days have been constructed in the state for use only in cases of extreme emergency at an operating cost vastly exceeding that of any other type of gas fuel.
“(4) New and additional contracts have been negotiated and secured calling for the delivery of natural gas from all possible sources outside the State of Ohio. Experience has indicated that commitments of this type are not a guarantee of a constant source of gas.”

The Commission further finds that:

“Notwithstanding the restrictions heretofore put into effect by the major utilities with the approval of the Commission, and the efforts of such utilities as hereinbefore set forth, and that further restrictions on the sale of natural gas for space heating are necessary, and that it is essential that such restrictions be applicable universally to all gas distributing utilities dependent in whole or in part upon supplies of gas from others, and that such restrictions shall be of uniform operation throughout the state of Ohio.
“The best estimates of the major companies, which estimates have been carefully scrutinized by the Commission, show that curtailment during the winter 1947-1948 will be as severe as previously experienced;
“Certain gas producing and distributing companies have sufficient supplies of gas to serve all their present and prospective demands;
“The Commission further finds that the emergency herein-before referred to continues to exist and that in conjunction therewith the emergency order of September 15, 1947, should be modified and amended for the purposes of adjusting certain matters in the public interest found to exist within the State of Ohio in the development and construction of new homes and in the outfitting of residences for continued occupancy.
“It is therefore
“ORDERED, That effective at 12:01 A. M., October 4, 1947, the following emergency Rules and Regulations be and they hereby are adopted and prescribed for and made applicable to all utilities or companies furnishing natural gas service in the State of Ohio, with the exception hereinafter made. All availability clauses, terms and conditions in or appertaining to any and all schedules, rules or regulations, now on file with the Commission or that may hereafter during the continuance of this emergency be filed with the Commission, applicable to the furnishing of natural gas to consumers in Ohio, are, because of and for the period of such emergency, altered so as to contain therein the following limitations and restrictions with respect to the supplying of service thereunder;
“RULE 1: No distributing utility shall supply or be required to supply natural gas service to any consumer present or prospective in the State of Ohio for equipment designed to furnish the source of space heating that replaces other fuels, or for additional space heating equipment.
“RULE 2: No distributing utility shall supply or be required to supply natural gas service to any consumer present or prospective in the State of Ohio, for new or additional equipment designed to provide gas space heating in any building, unless proof is furnished to the utility:
“(a) That gas fired heating equipment was registered with the utility and approval for the installation of such equipment was given by the utility prior to September 16, 1947, except that in territory where the utility had no rules and regulations with respect to gas curtailments prior to September 16, 1947, such equipment shall be registered and approval for the installation thereof obtained on or before October 10, 1947.
“(b) In the case of new construction of a building or buildings not designed for residence or dwelling purposes that a binding contract for such gas space heating equipment had been entered into prior to the effective date of this order. Copies of such contracts must be furnished to and registered with the utility on or before ten days after the effective date hereof.
“(c) In the case of new construction of a building or buildings designed for residence or dwelling purposes, whether built by owner, contractor for owner, real estate sub-division developer or any other person or persons having a binding contract or commitments, that obligations or commitments for such construction or building material or for gas space heating equipment had been entered into prior to the effective date of this order. Copies of such contracts or commitments must be furnished to and registered with the utility on or before ten (10) days after the effective date hereof, together with such other facts as the utility may deem proper. If such building program or project covered by such contracts, commitments or obligations for which gas space heating service is desired is not substantially started by January 1, 1948, gas service for space heating shall not thereafter be furnished in such instances.
“RULE 3: Nothing herein contained shall prevent natural gas consumers in the State of Ohio, either through their utility or their appliance dealer, from replacing gas fired space heating equipment, provided that the capacity of the equipment to be installed does not exceed the capacity of the replaced equipment.
“RULE 4: Whenever evidence available to the utility reasonably indicates that any consumer has connected gas fired space heating equipment which is not under these rules eligible for service from the utility’s gas service lines, the utility shall forthwith in writing direct such consumer to disconnect such equipment and discontinue the use of such service, and if such consumer shall fail or refuse to do so within ten (10) days, the utility shall discontinue the entire supply of natural gas to such consumer and shall withhold such supply until such gas fired space heating equipment has been disconnected. To insure against reconnection of such space heating equipment the utility, before re-establishing service to such consumer, shall take such measures as may be deemed practicable and necessary to restrict the flow of gas to quantities required for other than space heating purposes.
“RULE 5: Each distributing utility in the State of Ohio shall curtail natural gas service to industrial consumers when and to the extent necessary to supply the demands during peak periods of its domestic consumers in accord with this Commission’s administrative Order No. 46, but shall restore such curtailed service when the emergency is past.
“RULE 6: No action taken by any utility in compliance with these rules shall be deemed to constitute unjust discrimination or a violation of any of the provisions of The Public Utilities Commission Act, the General Orders of this Commission, or the schedules, rules, and regulations of such utility.
“RULE 7: Failure of any gas distributing utility to abide by and support the provisions of this order shall subject such utility and its responsible officers, agents and employees to the penalties provided by The Public Utilities Commission Act.
“This order shall not be applicable to any gas producing and distributing companies which have sufficient supplies of natural gas from their own wells, wells under their control or from local producing and distributing companies to serve all their present and prospective demands.
“It is further
“ORDERED, That this supplemental emergency order shall become effective forthwith, and that a further public hearing in this matter shall be held on March 2, 1948.
“It is further
“ORDERED, That a true copy of this emergency order be filed forthwith in the office of the Secretary of State of the State of Ohio.”

The substantial sum claimed as damages ($615,282.72), and the serious implications of the import of a favorable termination of the action, have stimulated counsel to the most resourceful and ingenious arguments on behalf of their respective clients, of which the case is capable. These arguments are most thoroughgoing and have been of profound interest to the Court.

To reveal the scope of counsel’s detailed presentations it is well that their respective claims should be spread upon this opinion.

Counsel for the defendant contend:

“I. The ‘law does not spread its protection so far’ as Floyd & Co. for alleged failure of a natural gas utility to enforce emergency orders of the commission as to natural gas consumers of said utility — Floyd & Co., a seller and installer of gas space heating equipment to consumers of said utility cannot assert damages or injury when the injury, if any, was done to prospective customers of said natural gas utility.
“II. The lifting of restrictions by the Sixth order removed actionable ‘violations’ if any existed.
“III. The elements of a cause of action for fraud are not stated.
“IV. Floyd & Co. has not alleged, as it must, a determination by the commission as to the existence of violations. The determination of the existence and number, if any, of such violations is a problem for the expert administrative knowledge of the commission. The commission is presently investigating this question.
“V. Floyd & Co.’s injuries, if any, are speculative as it has not alleged that defendant prevented it by its wrongful action, from carrying out existing contracts with its customers.
“VI. Floyd and Company has failed to allege a cause of action for damages under §614-68 GC because it has not alleged ‘willfulness.’
“VII. The action was not brought within the time limited for the commencement thereof, i. e. one year, because it is for a penalty or forfeiture.”

Counsel for the plaintiff contend:

“I. Floyd & Company was directly injured by the Defendant’s deliberate violations of the emergency orders of the Public Utilities Commission, and therefore, as such injured party, has the right to assert damages against the Defendant.
“II. The Sixth Supplemental Order did not have the effect of legalizing the prior acts of the Defendant, which, when committed, were violations of the preceding orders.
“III. Fraudulent conduct on the part of tbe Defendant is clearly alleged and characterizes the action of the Defendant in failing to carry out the orders of The Public Utilities Commission.
“IV. The various remedies provided by statute for the enforcement of the orders and regulations of the Commission are cumulative, and an action by an injured party for damages caused by a violation of those orders need not be predicated upon a determination of the fact of violation by the Commission.
“V. Plaintiff’s damages are alleged to be a certain result of the Defendant’s illegal conduct; their extent may be measured with reasonable certainty by the jury; and it is not necessary to allege for that purpose that the Defendant prevented the Plaintiff from carrying out existing contracts with its customers.
“VI. The allegations of the petition clearly show that the violations of the orders of the Commission were committed in the face of actual knowledge of those orders and not as the result of misunderstanding, honest mistake or other excusable conduct on the part of the Defendant and the omission of the word ‘wilfullness’ in respect to those violations is not fatal.
“VII. The suit at bar is by an injured private party to recover damages, not penalties'; the latter may be recoverable by the state, which has not been damaged by the violations.”

It is not deemed to be the function of a trial Court to adjudicate all of the propositions of law projected, if there be one which is determinative of the demurrer and upon which the trial Court entertains a conviction as a matter of law. and which would be dispositive of the demurrer. Such is the case in this instance. The Court addresses itself therefore to the query:

Does the petition state a cause of action?

At this juncture, it is held that the petition does not plead a cause of action sounding in fraud. The elements of actionable fraud are not stated.

The conduct of the defendant which is alleged to be the predicate of liability is contained in the first paragraph on page 3 of the petition and is requoted here for particularization.

“Plaintiff further says that, under the rules and provisions of the said Orders of The Public Utilities Commission of Ohio, defendant was required to refuse to furnish gas for additional space heating equipment, new space heating equipment, or conversion equipment until and unless the prospective consumer should, prior to the connection of such equipment to the gas service lines of defendant, apply for and obtain a permit in writing from defendant authorizing such use; and that said Orders further require defendant, if the consumer fails to obtain said approval or permit, to notify said consumer to disconnect such equipment within ten (10) days and, upon his failure to do so, to discontinue the entire supply of natural gas to such consumer until the equipment is disconnected.”

The action seeks treble damages under §614-68 GC which provides: .

“Treble damages on violations. — If any public utility or railroad does, or causes to be done, any act, matter, or thing prohibited by this act, or declared to be unlawful, or shall omit to do any act, matter or thing required by this act, or by order of the commission, such public utility or railroad shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation, failure or omission; provided, that any recovery under this section shall in no manner affect a recovery by the state for any penalty provided for in this act.”

Upon examination of the laws of the State of Ohio administered by the Public Utilities Commission, the only conclusion at which the Court is able to arrive is that these laws have application to the utilities as defined therein, and to the persons to be benefited thereby — the consumers of gas. This group cannot and should not be enlarged so as to include others who are not specifically mentioned therein nor those who are not clearly in contemplation of the legislature at the time of the enactment.

The plaintiff, in order to sustain his position, must bring himself within the scheme of the statute as an entirety.

The pleader in this instance has urged in effect that the defendant, in addition to having violated the emergency order pleaded, committed other overt acts which gave rise to an action at common law. With this we cannot agree.

The Court heretofore in this opinion has disposed of the question of fraud, as being insufficiently pleaded. • The contents of paragraph two, page three of the petition is urged as being the basis for damages. It reads:

“Plaintiff further says that immediately upon the issuance of said Emergency Order, as hereinabove set forth, and from time to time thereafter, the defendant notified this plaintiff that a supply of gas would be refused to any prospective consumer for space heating unless and until a written permit was first obtained by the consumer prior to the installation of space heating equipment; and if any installations were made without a permit being first obtained that the defendant company would shut off the supply of gas to said consumer.”

This paragraph in the opinion of the Court merely reveals a voluntary reiteration of the Commission’s orders, which are presumed to have been already within the knowledge of the plaintiff and such reiteration, therefore, cannot be said to be the basis of such misrepresentation as to warrant an action at common law. No contractual relationship between the parties hereto is alleged in the petition.

It can be reasonably stated that this action would not have been in being except for the provisions of §614-68 GC. It must rise or fall as an action conceived exclusively under the authority of that section of the code.

Again then, does that section inure to the benefit of the plaintiff, a seller and installer of gas space heating equipment, who is in no contractual relationship with the defendant and who is not included in the group to be protected or benefited by the legislation involved?

The Supreme Court of Ohio has not specifically passed on this question, and we are sensitive that this opinion pioneers the current question involved as a precedent in Ohio. That being true, resort to similar and analogous cases in point elsewhere is required.

The case of Jennie DePauw Memorial Methodist Episcopal Church v. New Albany Water Works, 193 Indiana 368 is considered to be apropos of the case at bar. In that case plaintiff sued in tort for damages for total destruction of its church building because of the defendant’s negligent failure to maintain fire hydrants for use. The alleged duty was the statutory one imposed on Water Companies in Indiana to supply water. At common law, the plaintiff would have had no such right of action and it so admitted. However, it predicated liability, first, on the statutory duty to supply water under certain conditions and the court held that this particular statute did not alter the common law; and, second, on a statute almost identical to §614-68 GC, herein at issue. Said Sec. 116 of the Indiana Statutes reads:

“If any public utility shall do, or cause to be done or permit to be done, any matter, act or thing in this act prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by this act, such public utility shall be liable to the person, firm or corporation injured thereby in the amount of damages sustained in consequences of such violation: provided that any recovery as in this section provided shall in no manner affect the recovery by the state of the penalty prescribed for such violation.”

The court, at page 374, stated:

“Section 116, supra, merely gives a right of action. The right of action so given does not point solely to Sec. 7, supra, but to many other sections of the act which specify duties to be performed as well as things which are prohibited. Again, it should be borne in mind that the legislature is using words in giving these rights of action, which have been seriously and definitely defined by this court, which definitions are universal in all the courts of recognized authority. The legislature saw fit to give a right of action to any person injured instead of to any person damaged. No one has a right to damages occasioned by an injury unless there is some person who.is legally answerable for having caused such injury, for ‘negligence will not be a ground of legal liability unless the party whose conduct is in question is already in a situation that brings him under the duty of taking care.’ Pollock, Law of Torts (10th ed.) ch. XI. In other words, in order to create a right to damages, two things must concur: That the one claiming the damages has suffered an injury; and that someone is legally answerable for having caused it. ‘Injury,’ as used by the legislature in this section, is held to mean a legal or actionable wrong; and because, by express statute under Sec. 7 of the Public Utilities Act, supra, no duty is cast upon the water company to furnish water for extinguishing fires in behalf of any individual that did not exist at common law, but only to the municipality, no actionable wrong was committed against appellant. City of North Vernon v. Voegler (1885), 103 Ind. 314, 319; Krom v. Antigo Gas Co. (1913), 154 Wis. 528 140 N. W. 41, 143 N. W. 163, and authorities there cited.”

Thus, the court held that said Sec. 116 conferred no right which did not exist at common law.

Several years later, the same Supreme Court of Indiana arrived at the same conclusion on similar facts. In Larimore v. Indianapolis Water Co. (1926), 197 Ind. 457, at 463, it stated:

“This court held in a recent case (DePauw supra) that these sections of this statute do not give any new right of action which did not exist at common law for the recovery of damages by reason of property within the city being suffered to burn for lack of adequate fire protection.” (Our note in parenthesis.)

On similar facts the Supreme Court of Wisconsin held likewise in Krom, et al v. Antigo Gas Co. et al, 154 Wise. 528 (1913). Wisconsin also has a statute almost identical to §614-68 GC. It reads:

“Wisconsin Public Utilities Law, Sec. 1797m — 93”
“* * * If any public utility shall do or cause to be done or permit to be done any matter, act, or thing in sections 1797m-1 to 1797m — 109, inclusive, prohibited or declared to be unlawful, or shall omit to do any act, matter or thing required to be done by it, such public utility shall be liable to the person, firm or corporation injured thereby in treble the amount of damages sustained in consequence of such violation; provided, that any recovery as in this section provided, shall in no manner affect a recovery by the state of the penalty prescribed for such violation.”

After reargument on this very point in the Krom case, the court, at page 543, held:

“Now if the word ‘injured’ is used in its accurate legal sense in sec. 1797m — 93, then no new liability is created by that section (except the liability for treble damages instead of single damages), unless in some other section of the law there be some provision giving to private property owners a right which they did not possess at common law under the principles of the Britton Case. Substituting in place of the word ‘injured’ its technical and accurate legal meaning, the section would provide that any public utility which shall fail to furnish reasonably adequate service shall be liable to the person who suffers an actionable wrong thereby in treble damages. So read, the section does not attempt to enlarge the list of actionable wrongs, and unless some other section of the law enlarges that list so as to include such a case as the present, it seems impossible to say that the list is enlarged at all. It was said in the former opinion that sec. 1797m — 3, which provides that every public utility shall furnish reasonably adequate service and facilities, is simply declaratory of the common law and adds nothing to the obligations of public utilities, and we are still of that opinion. We'have found no other section which enlarges the list of actionable wrongs so as to include the supposed wrong in the present case.” (Emphasis ours.)

Pennsylvania has an almost identical statute, being Sec. 1310 of the Public Utility Law of 1937 and reading as follows:

“If any person or corporation shall do or cause to be done any act, matter, or thing prohibited or declared to be unlawful by this act, or shall refuse, neglect, or omit to do any act, matter, or thing enjoined or required to be done by this act, such person or corporation shall be liable to the person or corporation injured thereby in the full amount of damages sustained in consequence thereof: Provided, That the liability of public utilities, contract carriers by motor vehicles, and brokers for negligence, as heretofore established by statute or by common law, shall not be held or construed to be altered or repealed by any of the provisions of this act: And provided further, That the recovery in this section authorized shall in no manner affect a recovery by the Commonwealth of the penalty prescribed in section one thousand three hundred one of this act for such violations of this act.”

Another case which seems to be squarely in point has been decided in Ohio. It is A-One Automatic Heating Inc. v. East Ohio Gas Co., No. 591,394 in the Court of Common Pleas of Cuyahoga County. A demurrer to the petition was sustained on January 15, 1949 and plaintiff deciding not to plead further, the action was dismissed. The case was then appealed to the Court of Appeals of Cuyahoga County, being there No. 21401. On November 7, 1949 that court affirmed the judgment in favor of East Ohio below. The plaintiff alleged that it was “engaged in the business of selling furnace and furnace parts” and for its first cause of action, that defendant had failed to carry out the terms of a franchise agreement with the City of Lakewood by refusing to supply gas to space heating consumers as a result of certain restrictive rules approved by the Public Utilities Commission of Ohio, thereby tortiously injuring the customers of plaintiff. Plaintiff for its second cause of action, made substantially the same allegations as in its first except that it alleged the terms of said franchise agreement were for its benefit and it thereby asserted damages on the contract. The courts found that neither stated a cause of action. No opinions were reported in that case but the petition and holdings are of record in the Common Pleas Court of Cuyahoga County, No. 591394, and in the Court of Appeals of that County being No. 21401, November 7, 1949.

The considered opinions and conclusions of law heretofore cited are ample authority for sustaining the demurrer.

It is held herein that:

1. The petition does not state a cause of action.

2. A seller and installer of gas space heating equipment to consumers of natural gas, cannot assert damages or injury, where the injury resulted from the violation of emergency orders of the Public Utilities Commission of Ohio, which orders were promulgated for the benefit of gas utilities and the consumer public.

3. Such purveyor of gas space heating equipment is not injured for wrongs done its prospective customers by a natural gas utility in failing to obey emergency restriction orders of the Commission and thereby being unable to serve such prospective consumers.

This ruling being dispositive of the demurrer, it is not necessary to pass upon the other points presented.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    BRUNST et, Plaintiff-Appellant, v. GARNER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22526.
    Decided October 20, 1952.

      Jos. L. Newman, Cleveland., for plaintiff-appellant.
    K. J. Ertle, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment for the defendant on the plaintiff’s petition and also for said defendant on his cross-petition. The plaintiff’s action was for an alleged balance due upon a contract to manufacture and deliver dies to be used in the production of a battery terminal designed by the defendant. The agreement for the purchase of said dies was entered into early in January, 1946. The plaintiff agreed to make the dies for $900.00. In May, 1946, the plaintiff notified the defendant that the dies could not be made for the agreed amount but that it would cost $1100.00. The defendant agreed to modify the agreement so that the purchase price of the dies would be $1100.00. Thereafter, defendant, between May and August, paid the plaintiff Seven Hundred Dollars ($700.00) in two installments, the first being $300.00, and the second in the amount of $400.00.

Some time before December 21st, the plaintiff claims to have notified the defendant that the dies had been completed, but the defendant, after examining them, testified that they were not as agreed. Nevertheless, on December 21, 1946, he tendered the balance due of $400.00 and demanded delivery of the dies. This demand was refused by the plaintiff because he claimed that after making the agreement to produce the dies for $1100.00, in May, 1946, certain experimental worx was necessary which was done with the consent of defendant and was of the value of $500.00. He therefore refused to deliver the dies until $900.00 had been paid. The defendant refused the additional amount demanded and the plaintiff still has possession of the dies. The defendant thereafter procurred dies from another manufacturer. The plaintiff’s action is for $900.00, the balance claimed by him to be due. The defendant’s counter-claim was for the return of the $700.00 paid because of the refusal to deliver the dies upon tender of the balance due, under the May agreement, of $400.00. Judgment was entered by the court, without the intervention of a jury, against the plaintiff and for the defendant for $700.00 plus interest.

The plaintiff’s claims of error are not clearly set forth but would appear to be:

1. That the judgment is contrary to law.

2. That the judgment is against the manifest weight of the evidence.

The transaction here presented upon the facts that are undisputed, constituted a contract on the part of the plaintiff, to sell certain dies of a special design to the defendant for an agreed price. The liability of the defendant to pay the price agreed upon was dependent upon the plaintiff’s manufacture and delivery of the dies.

The first question presented to the trial court was to determine what the terms of the contract were. Here, there was a conflict in the evidence on one point only and that was whether the defendant agreed to be responsible for certain experimental work after the modified agreement between the parties of May 4, 1946. Both parties agree that on that date there was a firm agreement that the plaintiff would produce the dies needed by the defendant and the defendant would pay $1100.00 therefor.

It is the claim of the plaintiff that thereafter certain experimental work was necessary which the defendant agreed or consented to pay for. This the defendant denies. This disputed question of fact the court resolved in favor of the defendant. Such determination is supported by credible evidence and we are therefore bound by that determination.

Upon the facts thus determined, the amount due the plaintiff on December 21, 1946 was $400.00. This amount was tendered by the defendant and delivery of the dies demanded, which tender and demand the plaintiff refused for the reason that he claimed to be entitled to $500.00 more than the contract provided. The tender discharged the plaintiff’s lien because he was thereafter not an unpaid seller as defined by §8432 GC (Sales Code).

The defendant was then entitled to delivery of the dies and the plaintiff, in refusing delivery, committed a breach of his contract. The defendant, because of such breach, had the legal right to demand the return of the money paid. Sec. 8446 and §8447 GC. In Williston on Sales, Revised Edition, Vol. 3, Sec. 600 page 321, the author says:

“Where a buyer is allowed rescission as a remedy for breach of warranty in an executed sale, as he is under the Sales Act, the right of rescission and recovery of the price is one of great importance and wide scope. It will be further considered subsequently. But even in England and other jurisdictions where rescission of an executed sale is not allowed, the buyer may recover the price or any portion of it which has been paid if there is a total failure of consideration.

“There is such a total failure if the seller fails to transfer to the buyer the property in any part of the goods. It is immaterial whether this failure is due to the seller’s fault or because, owing to the destruction of the goods or other cause •rendering performance impossible without the seller’s fault, the buyer will not get the goods for which he has bargained. The principle is undisputed where the buyer has received nothing under the contract; and even where the buyer has recived part performance, yet if by adjustment of damages or return of what has been received, justice can be attained by rescission, it is allowed. The defendant’s breach, however, must be total, that is, sufficient to justify the plaintiff’s refusal to proceed with the contract.”

It must be kept clearly in mind that a seller cannot create any greater obligation upon the buyer than was agreed upon in the contract to sell, unless such agreement is subsequently modified by the parties under such circumstances as to create a new contract based upon a meeting of the minds of the parties and consideration. Even if the relationship was that of bailor and bailee as seems to be contended by the plaintiff, the result would be the same. In Dobie on Bailments and Carriers, under the Chapter on Compensation of the Bailee, parag. 62, beginning at page 137, the author says:

“When the departure, from the contract consists of the bailee’s doing more than was called for by the agreement, instead of less, he cannot recover any extra compensation, in the absence of the bailor’s acquiescence or consent. Thus, where without such consent, the bailee does finer work or uses more valuable materials than the agreement calls for, he cannot recover more than the stipulated compensation. His attempt to impose added financial burdens on an unwilling bailor will not be countenanced by the law.”

The transaction here involved is a contract to sell and not a bailment nor one for work and labor. The plaintiff agreed to manufacture dies of a certain design. He first agreed to do so for $900.00. After about three months of work on the project, he concluded that the dies could not be produced for $900.00, and demanded a revision of the contract whereby he would be paid $1100.00 for their manufacture. This modification was agreed to by defendant, and while it is difficult to find consideration for such modification the defendant has not raised that question and is here presenting his case on the terms of the contract as modified.

The facts being found as above set forth, the judgment for the return of the money paid is in full accord with the provisions of the Sales Code where the seller refuses delivery of the goods upon proper tender of the balance due of the purchase price or where the seller’s demands are such that it is made to appear that a proper tender will be refused. The need for tender before exercising the right to rescind the contract for breach of a contract to sell, is waived where the demand for payment is in excess of the amount due. There was no objection to the manner in which the balance was tendered by the defendant. The refusal to accept such tender was because the plaintiff claimed a greater amount than was tendered and there is not the slightest suggestion that the tender would have been accepted if it had been in lawful money instead of $300.00 being represented by a certified check.

For the foregoing reasons the judgment is affirmed. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By BARTLETT, J.

text:
    STATE, ex rel. BOHLINGER, Relator, v. ANNAT et, Defendants.
    Common Pleas Court, Franklin County.
    No. 188406.
    Decided August 13, 1954.

      Nelson Lancione, Columbus, for relator.
    C. William O’Neill, Atty. Geni., Ralph Klapp, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By BARTLETT, J.

This is an action in mandamus wherein the Relator, the Superintendent of Insurance for the State of' New York as domiciliary receiver of the Preferred Accident Insurance Company of New York, in the process of liquidating said company, seeks a Writ of Mandamus requiring the Respondent as Director of Commerce and Superintendent of Insurance of the State of Ohio respectively, to issue written instructions to the Treasurer of the State of Ohio to deliver possession of certain United States Treasury Bonds having a face value of $60,000.00, deposited with the said Superintendent of Insurance by said insurance company in accordance with Paragraph 2, §9510 GC (now §3929.01 R. C.), in possession of said State Treasurer, subject to the written order of said Superintendent of Insurance.

Said company was adjudged insolvent on April 30, 1951, and at that time was licensed to do business in this state, by virtue of the original deposit on November 23, 1911, in the sum of $50,000.00 of said bonds, later increased to $60,000.00 in accordance, with said §9510 GC supra.

The Superintendent of Insurance has not been appointed ancillary receiver in this state and has not filed a petition for such, pursuant to §628-26 GC (now 3903.26 R. C.), since he has expressly found that there were not sufficient assets of the insurer company located in Ohio to justify the appointment, in view of the fact that in excess of 400 claims amount-' ing to more than $700,000.00 have been filed by Ohio residents with the New York.liquidator and no petition for the appointment of an ancillary receiver has been filed with him by claimants residing in Ohio.

The final date for filing claims with the Relator as said liquidator, was October 31, 1951, and notice thereof was given by mail or publication to all interested parties; said publication notice was carried in a newspaper in Cleveland, Ohio, among others, once a week for three successive weeks.

Relator has allowed in excess of $80,000.00 to Ohio claim- • ants, and has allowed and paid dividends totalling 50% to claimants outside of Ohio; but the dividends allowed to Ohio claimants, are being held in escrow, since Section 545, paragraph 2, New York Uniform Insurer’s Liquidation Act prevents payment of dividends to the claimants in the states where there exists such a statutory deposit, until such deposit has either been distributed to the claimants of that state or turned over to the domiciliary receiver of New York.

The States of New York and Ohio each have adopted the Uniform Reciprocal Liquidation Act, similar in substance and effect, and is found in §§3903.24 to 3903.33 R. C. (formerly §628-26 to 628-35 GC), both inclusive; and §3903.25 R. C., provides said act “shall be liberally construed to the end that so far as possible the assets of insurers doing business in more than one state shall be equally and uniformly conserved in all states, and that claimants against such insurers shall receive equal and uniform treatment irrespective of residence or the place of the acts or contracts upon which their claims are based * * Such sections “shall be interpreted and construed so as to effectuate their general purpose to make the law of this state uniform with the law of those states that enact similar legislation.” (Emphasis ours.)

On December 31, 1952, the Superintendent of Insurance requested an opinion of our distinguished Attorney General as to authority to comply with the request of relator to surrender to him the $60,000 statutory deposit in this state for the liquidation of all such claims in New York. The first dividend on claims filed with relator was allowed January 15, 1953.

The instant case was not filed until September 30, 1953, after 2% years had elapsed and no action had been taken in Ohio to liquidate the assets of said company in this state; and, also, better than 9 months had elapsed without any action in Ohio, after such request for the surrender of such statutory deposit.

The Superintendent of Insurance in his request for an opinion, called the Attorney General’s attention to the necessity for prompt attention to this matter, since “Ohio claimants cannot participate in the partial dividend to be distributed in the near future, until this matter has been decided, * *

The Assistant Attorney General on page 9 of his brief, suggests that if this Court refuses the writ of mandamus, additional proceedings would appear to be in order to reduce the deposit to the payment of Ohio policyholders.

Sec. 3929.01 R. C. (formerly §9510 GC), provides in part as follows:

“a company of another state, * * * admitted to transact the business of indemnifying employers and others, in addition to any other deposit required by this state, shall deposit with the superintendent of insurance, for the benefit and security of all of its policyholders, fifty thousand dollars in bonds of the United States * * * which shall not be received by the superintendent at a rate above their par value.” * * *

The $60,000.00 deposit in question was placed with the superintendent of insurance by virtue of the foregoing statutory provision; and it has been held that this deposit is for the primary benefit of Ohio policyholders, even though the statute says “for the benefit and security of all its policyholders.” (Emphasis ours.) State ex rel. Turner v. Union Casualty Ins. Co., 8 Oh Ap 285; and the New York Supreme Court has held that on liquidation of a New York insurance company, the courts of that state must give effect to the Ohio court’s decision that such statutory deposit is only for the benefit and security of Ohio policyholders. In re. Southern Surety Co., 9 N. Y. Supp. (2nd) 567, 282 N. Y. 54. Counsel for the Relator concede this to be the law of both states.

Sec. 3903,38 R. C. (formerly §641 GC) provides:

“If any company, * * * required by law to make a deposit with the superintendent of insurance, or other state officer, to secure the contracts of such company, * * *, or for any other purpose, * * * has become insolvent, the attorney general, on behalf of the superintendent, or such other state officer, and upon application of any person entitled to participate in such deposit, or the proceeds arising therefrom, shall commence a civil action in the Court of Common Pleas of Franklin County, making the company * * * a party defendant, to determine the rights of all parties claiming any interest in such deposit, to subject the deposit to the payment or satisfaction of all liabilities, and to distribute such fund among the persons entitled thereto.” (95 O. L. 480.)

In 1939, many years subsequent to the enactment of the foregoing statute, the Uniform Reciprocal Liquidation Act was adopted by the General Assembly of Ohio, now §§3903.24 to 3903.33 R. C. (In 1940 New York passed substantially the same law.)

Pertinent sections of said Liquidation Act are found in the following sections of the Revised Code of Ohio:

Sec. 3903.26 (formerly §628-26 GC).

“After the commencement of delinquency proceedings in another state against a domiciliary insurer in such state, a court of competent jurisdiction in this state may, on the petition of the superintendent of insurance of this state, appoint such superintendent as ancillary receiver in this state of such insurer. The superintendent shall file such petition in either of the following instances:
“(A) If he finds that there are sufficient assets of such insurer located in this state to justify the appointment oí an ancillary receiver;
“ (B) If ten or more persons resident in a state having claims against such insurer file a petition in writing with the superintendent requesting the appointment of such ancillary receiver.
“As ancillary receiver the superintendent may sue for and reduce to possession the assets of such insurer in this state, and, subject to the rights of the domiciliary receiver, he has the same powers and is subject to the same duties, with respect to such assets, as are possessed by a receiver of a domiciliary insurer under the laws of this state.”

Sec. 3903.28 (formerly §628-28 GC):

“If a delinquency proceeding is commenced in another state against a domiciliary insurer in such state, claimants against such insurer who reside within this state may file claims either with the ancillary receiver appointed in this state or with the domiciliary receiver. All such claims must be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceeding.
“In any such proceeding, controverted claims belonging to claimants residing in this state may be proved in the domiciliary state as provided by the law of such state, or if ancillary proceedings have been commenced in this state, they may be proved in such ancillary proceedings.
“If any such claimant elects to prove his claim in this state, he shall file his claim with the ancillary receiver in the manner provided by the law of this state for the proving of claims against domiciliary insurers, and he shall give notice to the receiver in the domiciliary state, either by mail or otherwise in writing, that such claim is being made to such ancillary receiver, and the nature and the amount thereof. The domiciliary receiver may appear or be represented in any proceeding in this state involving the adjudication of the claim. The allowance of the claim by the courts of this state is final and conclusive both as to its amount and also as to its priority against special deposits or other security located within this state.”

Sec. 3903.30 R. C. (formerly §628-30 GC):

“The owners of special deposit claims against an insurer for which a receiver has been appointed in a delinquency proceeding in this or any other state shall be given priority against their several special deposits, in accordance with the statutes requiring the creation and maintenance of such special deposits. If there is a deficiency in any such special deposit so that the claims secured thereby are not fully discharged, the claimants may share in the general assets, but such sharing shall be deferred until general creditors, and also claimants against other special deposits who have received a smaller per cent from their respective special deposits, have been paid a per cent of their claims equal to the per cent paid from such special deposit.”

Sec. 3903.32 R. C. (formerly §628-32 GC):

“The ancillary receiver of assets in this state of insurers domiciled in other states and subject to delinquency proceedings therein shall, as soon as practicable, arrange the liquidation or other disposition of special deposit claims and secured claims proved in the ancillary proceedings in this state, and shall promptly transfer to the domiciliary receiver all remaining assets, after payment of expenses. (Emphasis ours.)
“The domiciliary receiver of another state may sue the ancillary receiver of this state in the courts of this state for the purpose of collecting any surplus remaining in this state, and, if no ancillary receiver is appointed in this state, such domiciliary receiver may collect any assets of such delinquent insurer located in this state, and may sue in the courts of this state to obtain any such assets.” (Emphasis ours.)

Counsel for respondents emphasize that the deposit in question is a trust fund and must be administered as such. The Supreme Court of New York in the Southern Surety Co. case, supra, recognized that the Ohio Superintendent of Insurance holds the deposit as trustee of an express trust for the exclusive benefit of.Ohio policyholders, and that in the liquidation of a New York Insurance Company, the New York court was bound to give effect to that fact, and thus preserve such security of Ohio policyholders.

The Relator has pledged he will administer the proceeds of said deposit as such trust fund if it is transferred to him.

Sec. 3903.30 R. C., outlines the same requirement as to the administering of the proceeds of such deposit by the receiver “appointed in a delinquency proceeding in this or any other state.” (Emphasis ours.) New York has the same statutory right in Section 545, paragraph 2, of the N. Y. Insurance Code.

The fact that the Superintendent of Insurance holds such deposit as a trust fund, does not prevent the General Assembly of Ohio from providing by express statute other methods of carrying out the trust impressed, than the procedure outlined in the antiquated §3903.38 R. C. (formerly §641 GC), relied upon by counsel for Respondents.

The Liquidation Act passed by the General Assembly of Ohio in 1939, clearly provided such an alternative method of disbursing the proceeds of said deposit.

It is said:

“A trust never fails for want of a trustee, for it is within the general equity powers of a court of chancery to appoint one where that is all that is necessary to be done to make the trust operative. Where a corporate trustee, for example, a school district, fails because the law empowering or creating it is unconstitutional, a subsequent incorporation under a valid law will correct the defect.” 40 O. Jur. Trusts, p. 203.

Certainly the General Assembly may change the trustee or the method of administering the trust fund, as long as the trust itself is preserved, since the State of Ohio is the creator of the trust. The policyholders have vested rights in the fund, but the Superintendent has no vested right as trustee that is not subject to be divested by the sovereign state through its General Assembly.

It was held in the ease of Lawson v. Brieker, 20, Abs 643, (1935) that former §64T GC, now §3903.38 R. C., provided the only means by which such deposit could be liquidated; but the subsequent enactment of the Uniform Liquidation Act nullified that rule of law.

It is also true that in the case of State v. Crabbe, 114 Oh St 517 (1926), it was held that “until the claims of domestic policyholders and creditors have been settled, an alien receiver is not ‘a person entitled to participate’ under said section ” (Sec. 641 GC.) Again the subsequent adoption of the Uniform Liquidation Act, expressly nullifies the strict rule of law thus enunciated.

The Attorney General of Ohio, as legal adviser of the Superintendent of Insurance, suggested in his opinion of 1952 that:

“It would appear that a deposit of $60,000 is ‘sufficient assets’ located in this state to justify the appointment of an ancillary receiver, and perhaps enough to make it mandatory upon the superintendent to appoint such an ancillary receiver.”

Whether the $60,000 deposit is sufficient assets in Ohio, to warrant the appointment of an ancillary receiver, is a question of fact rather than law, and the discretion is lodged in the Superintendent rather than his legal adviser, as to the justification of appointing such ancillary receiver. The Superintendent has made an express finding that there are not sufficient assets in Ohio to warrant such appointment, and he has not seen fit to reverse such finding.

On page 12 of his brief, counsel for Respondents, suggests that “It is a fact, that considerable expense is involved in requiring an Ohio claimant to prove his claim in New York.” This suggestion does not merit very serious consideration, in view of the fact that over 400 claimants from Ohio have already filed their claims with the Relator in New York, and even at this late date not a single Ohio claimant has requested an ancillary receiver in Ohio.

Counsel for Respondents suggests that §3903.32 R. C. (formerly §628-32 GC), merely gives the domiciliary receiver, Relator in the instant case, the right to sue in Ohio to obtain any “assets” of the delinquent insurer located in this state, but that such statute does not mean the Relator has the right to “collect” on his suit.

In other words, counsel for Respondents undertakes to distinguish between a “right of action” and a “legal rignt to the statutory deposit.” This is specious reasoning, and disregards the express terms of the statute in question, which provides the relator as “such domiciliary receiver may collect any assets, * * * in this state, and may sue in the courts of this state to obtain any such assets, if no ancillary receiver is appointed in this state.” (Emphasis ours.)

This Court finds the Respondent, as Superintendent of Insurance, had the legal right, under §3903.26 R. C., in the exercise of a sound discretion, after the commencement of delinquency proceedings in New York against the Preferred Accident Insurance Co. of New York, a domiciliary insurer in such state, to request the proper court in Ohio to appoint him as ancillary receiver to liquidate the assets in this state of such insurer, if he found such assets in this state were sufficient to justify the appointment of such ancillary receiver; but in the event such Superintendent in the exercise of a sound discretion, found such assets in Ohio were not sufficient to warrant his appointment as such ancillary receiver, and no such appointment has been made — he has a legal right and duty under §3903.32 R. C., to transfer to the Relator as domiciliary receiver, for liquidation in New York, the special statutory deposit of $60,000, placed with said Superintendent of Insurance, in compliance with §9510 GC (now §3929.01 R. C.), said transfer being subject to the conditions of liquidation of such statutory deposit, prescribed by §3903.30 R. C.

The Court further finds that the Superintendent of Insurance owes a legal duty to the Ohio claimants against such delinquent insurer to exercise his discretion, within a reasonable time, either to request his appointment as such ancillary receiver or to transfer said statutory deposit to the domiciliary receiver, the Relator, for liquidation.

The Court further finds a refusal by the Superintendent of Insurance, for an unreasonable length of time, either to request his appointment as such ancillary receiver or to transfer such statutory deposit to the Relator as domiciliary receiver for liquidation, is prejudicial to the best interests of the Ohio claimants of such delinquent insurer, and constitutes an abuse of discretion, which warrants the Court in issuing the extraordinary Writ of Mandamus to transfer such statutory deposit to the Relator as such domiciliary receiver for the purpose of liquidating the assets of such insurer. Such un-, reasonable delay prevents the payment of Ohio claims already allowed, and thereby thwarts the purpose of the statutory deposit to guarantee the payment of such claims.

“Of course, the doubts of the officer, no matter how strong or honest, as to his duty, are of no consequence, inasmuch as the right to a writ of mandamus to compel the performance of an official act' by a public officer depends upon his legal duty, and not upon his doubts. And where there is an act of an officer requiring the construction of a statute, concerning which there may be an honest difference of opinion, mandamus is the proper remedy to compel such officer to act in accordance with required construction, or to show cause why he does not.” 25 O. Jur. Mandamus, Sec. 21, p. 994; State ex rel. Mannix v. Auditor, 43 Oh St 311; State ex rel. Atty. Gen. v. Hoglan, 64 Oh St 532.

“It is the court’s duty to solve all such doubts, and to declare the duty as it finds it to be, after its misgivings as to the intent and meaning of the statute involved, or as to any other question of law, has been eliminated.” 25 O. Jur., supra; 125 Am. St. Rep. 495.

The Court finds that an unreasonable delay has ensued since the Respondent, as Superintendent of Insurance, found there were not sufficient assets in Ohio of the insurer to justify his appointment as ancillary receiver in this state; and that his duty to the Ohio claimants of said insurer, requires that he transfer said statutory deposit of $60,000 to the Relator as domiciliary receiver for liquidation of the assets of said delinquent insurer.

The Writ of Mandamus is ordered to issue in accordance with the prayer of the petition of the Relator. Entry accordingly with exceptions by counsel for Respondents.


author: By THE COURT. By MILLER, J.

text:
    KLARMAN, Plaintiff-Appellant, v. SNYDER, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4844.
    Decided November 14, 1952.
    Coughlin, Ogier & Lloyd, Michael A. Coughlin, of Counsel, Russ Bothwell, Columbus, for plaintiff-appellant.
    Wright, Harlor, Purpus, Morris & Arnold, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the appellee seeking an order dismissing the appeal for the reason the same is not a final order.

The record reveals that a motion was filed to set aside the special verdict returned by the jury; that this motion was overruled on August 11, 1952, at which time judgment was rendered for defendant upon the verdict; that on August 12, 1952, a motion for a new trial was filed; that on August 29, 1952, notice of appeal was filed directed to the judgment of August 11, 1952; that on September 8, 1952, the motion for a new trial was overruled, and upon September 18, 1952, notice of appeal was filed to the order overruling the motion for a new trial.

This Court held that such an order was appealable in the case of Jolley v. Martin Brothers, 90 Oh Ap p, 415, and we are still of the same opinion. The appellee urges that plaintiff waived his motion for a new trial when the first notice of appeal was filed, citing Liberal Savings & Loan Co. v. Frankel Realty Co., 137 Oh St 489. This case is determinative, we think, of the fact that the first appeal was properly filed; that for the purpose of such appeal the party appealing waived his motion for a new trial, but it does not necessarily follow that he waives it for all other purposes. It does not appear to us that the cited case is controlling in the instant case.

Decided March 10, 1953.

Coughlin, Ogier & Lloyd, Russ Bothwell, Columbus, for plaintiff-appellant.

Wright, Harlor, Purpus, Morris & Arnold, Earl F. Morris, of Counsel, Columbus, for defendant-appellee.

The motion is overruled.

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

KLARMAN, Plaintiff-Appellant, v. SNYDER, Defendant-Appellee.

No. 4844.

OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court rendered upon a special verdict of the jury. The action was one for damages arising out of a collision between an automobile being operated by the plaintiff and a truck consisting of a tractor and trailer. Both vehicles were moving in an easterly direction on East Main Street and for such easterly traffic there were three lanes. This plaintiff was in the one to the right, nearest the curb, and the truck was in the center or the one to the immediate left of that of the plaintiff. The truck was approaching from the rear and in overtaking the plaintiff’s car the collision occurred.

The defendant was charged with the following acts of negligence:

1. In operating said truck at a greater speed than was reasonable and proper, to wit, at a greater speed than would permit him to stop within his assured clear distance ahead.

2. That the defendant failed to have control of said truck.

These acts of negligence were denied generally by the answer, which also alleged further that if the plaintiff suffered any injuries the same were caused solely by his own negligence and carelessness.

After the conclusion of all the testimony counsel for the plaintiff requested that the jury be instructed to return a special verdict, and submitted four narrative forms. Counsel for defendant submitted one question and answer form and objected to the submission to the jury of each of the forms submitted by plaintiff for the reason that each of them required the jury to find conclusions of law as well as facts and that such forms were therefore improper since they did not comply with the statute. The trial court pointed out that since each of plaintiff’s forms required the jury to find, for instance, as to negligence, that the submission of such form would require a charge sufficiently broad to enable the jury to understand the meaning of all terms used in the special verdict forms. However, upon the insistence of counsel for plaintiff the Court submitted plaintiff’s special forms to the jury. The Court also prepared and submitted four of his own narrative forms of special verdict to the jury over the objection of counsel for the plaintiff. After due deliberation the jury returned the following special verdict:

“Albert E. Klarman, the Plaintiff, was driving a Bexley police cruiser at the time of the collision here involved; the other motor vehicle — a tractor trailer outfit — was being operated by George Redman at that time and place for the defendant, Edmund J. Snyder.
“The collision occurred in the driving lane which Defendant’s truck was proceeding in — that is, the middle lane of the three east-bound lanes on East Main Street; such collision occurred at that point while defendant’s tractor-trailer was proceeding east in a straight course at a speed of 20 to 30 miles per hour; such collision occurred after plaintiff, Klarman, had left the parked position at the south curb in front of the ambulance and had driven the cruiser from the parking lane into the path of defendant’s tractor-trailer without ascertaining that he could do so with safety to himself and other users of East Main Street.
“Should Plaintiff, Klarman, be entitled to recover damages from the Defendant, we find that his damages, directly resulting from said collision, are Nothing.”

Thereafter, the Court drew conclusions of law from the facts found by the jury in the special verdict and returned judgment for the defendant.

The plaintiff attacks the special verdict charging that the trial court should not have submitted his own forms of special verdict, that what was returned by the jury was not a special verdict and that judgment for the defendant should not have been entered thereon.

The plaintiff’s objection to the form is that it did not find on all of the issues making no findings as to proximate cause. We are of the opinion that the plaintiff’s objection to the Court’s preparing the special forms is not well taken. Not only may the trial court do so, but if he feels the situation warrants, it is his duty to do so. In 39 O. Jur., Section 407, pages 1136 and 1137, it is said:

“An Indiana line of authorities indicates that in that state the trial court has no duty to perform in preparing special verdicts. Under the practice prevailing in Ohio such cannot be said to be the rule. Good practice requires the court to submit sufficient forms to secure an adequate general verdict; a fortiori it should closely supervise the submission of the much more intricate form of special verdict.”

Plaintiff also claims error in that the special verdict did not find on all the issues, failing to find proximate cause.

Plaintiff’s petition charged defendant with only two acts of negligence, to wit, violation of assured clear distance ahead rule and failure to keep his vehicle under control. When the jury found that the speed of the defendant’s truck was twenty to thirty miles per hour, that the collision took place while the truck was proceeding in a straight course in the middle lane of the three east-bound lanes and that the collision occurred after the plaintiff had driven the cruiser from the parking lane into the path of the truck without ascertaining that he could do so with safety to himself and other users of the street, it fully determined the issues raised by the petition. Even if this were not true, no facts having been found which supported plaintiff’s charges of negligence, those charges must be regarded as not proved, and,, therefore, the jury found all it needed to find in order that judgment could be rendered from the pleadings and the facts found without reference to the evidence. See Dowd-Feder Co. v. Schreyer, 124 Oh St 504; Noseda v. Delmul, 123 Oh St 647. Since the jury found no facts which would support a finding that defendant was negligent no qúestion of proximate cause arose.

In Hubbard v. Cleveland, Columbus & Cincinnati Highway Inc., 76 N. E. 2d, 721, this Court said at pages 723 and 724:

“The jury having found against the plaintiff on the one determinative ultimate fact, the jury had discharged its full duty. No other finding was required. The jury was not required in view of its special finding of fact, to go further and determine the proximate cause. Where there is a judgment for the defendant, proximate cause is not a necessary element of finding in the special verdict. If there is no finding of fact in the special verdict from which the court could conclude the defendant was negligent, the element of proximate cause is clearly immaterial. In our opinion the jury in its special verdict so presented the essential facts that nothing remained for the Court but to dr.aw from the facts found, conclusions of law. The court very properly entered a judgment for the defendant on the special verdict.”

It is our conclusion that the Court rendered the proper judgment upon the special verdict.

The appellant next urges that the Court committed prejudicial error when it made the following statement late in the afternoon with reference to the jury visiting the scene of the accident:

“I have the feeling, however, that to attempt adequately to examine this particular spot on East Main Street at this hour in the afternoon might be a little dangerous, that is one of the busiest areas we have in Franklin County ”

This statement referred to the afternoon when the statement was made and therefore had no reference to the earlier morning hour when the accident occurred. This comment by the trial court could not have been prejudicial to the plaintiff.

The appellant contends that the court erred in its answer to the following questions submitted by the jury:

“We have decided on one of the single page typewritten special verdicts. Do we now have to answer the questions and sign the two page special verdict marked No. 180693?
“The answer to this question is no, you need not sign that particular one. Now, if you will withdraw again and go on with your work.”

The question clearly was intended to inquire whether the jury were compelled to answer certain questions, to which the response that they did not need to do so was proper and could not have misled them. This is especially true when the Court’s instructions as to the special verdict in general are considered.

Plaintiff next urges that the court erred in instructing the jury that the action occurred in a zone where 35 miles per hour was the prima facie speed limit. We find that under the record the charge was proper and even if it were not the charge had no application to and could not have affected the special verdict returned by the jury.

It is urged further that the court erred in its whole charge to the jury by charging on negligence, contributory negligence, proximate cause and the law of the case. The principle to be applied in this situation is defined in the fifth syllabus of the Dowd-Feder case, supra, which reads:

“When a special verdict is to be rendered, only such instructions should be given by the court as are necessary to enable the jury clearly to understand their duties relative to such special verdict.”

And at page 516 the Court went further:

“Though the court went further in the instant case and gave some general instructions upon the law of negligence, it is conceded that the statements made were in all respects correct, and it is inconceivable that they could have influenced the action of the jury adversely to the defendant, or that they were in any wise prejudicial.”

It will be noted that the special forms of verdict submitted by the plaintiff contained the terms “proximate cause, negligence, proximate result,” etc. It would appear that under the rule laid down in the Dowd-Feder case it became incumbent upon the court to so instruct the jury that they would understand the terms employed in the special verdict forms submitted by plaintiff’s counsel. If there was any error committed by the trial court in submitting these instructions it appears to us that the same was induced by the plaintiff upon his insistence that’ the special charges be given in the form that they were. The jury chose to return one of the forms of verdict which contained none of the above terminology. Therefore none of the parts of the charge of which the plaintiff complains could have affected the verdict and no prejudice to the plaintiff could have resulted.

We find that the court did not abuse its discretion in overruling the plaintiff’s application for a new trial upon the claim of newly discovered evidence. The granting or refusal of the motion for a new trial rests largely in the discretion of the trial court. It is only where this discretion is shown to have been abused that the resulting judgment will be disturbed by a reviewing court. 2 O. Jur., Part 2, Section 621, Page 1115. We find no error in the record and the judgment will be affirmed.

WISEMAN, PJ, HORNBECK, J, concur.