text:
    OHIO WATER SERVICE COMPANY, Petition, In re.
    Public Utilities Commission.
    No. 27661.
    Decided February 10, 1959.

      Dunbar, Dunbar & Kienzle, By Frank C. Dunbar, Jr., for the Petitioner, Ohio Water Service Company.
    Harold D. Parker, Theodore Macieko, Solicitor, for the City of Struthers, Ohio.
    William Saxbe, Atty. Geni., By James F. DeLeone, Asst. Atty. Geni., and Commission Counsel, for The Public Utilities Commission of Ohio.
   FINDING AND ORDER

The Commission, coming now to consider the above-entitled matter, its Orders and Entries previously issued in connection therewith, the testimony adduced at the public hearings relative to this matter held on September 17, 1958, November 6, 1958, and November 7, 1958, the exhibits and the reports introduced at the hearings, and being fully advised in the premises hereby renders its Findings and Order in compliance with §4903.09 R. C.

HISTORY OF PROCEEDINGS:

March 18, 1958 Petition filed.
September 8, 1958 Report of the Engineering and Accounting Staff filed.
September 17, 1958 Matter came on for public hearing but not completed.
September 29, 1958 Answer and Objections to Engineering and -Accounting Reports filed by City of Struthers.
October 6, 1958 Motion to strike the Answer of the City of Struthers was filed by the Petitioner.
November 5, 1958 Order issued by Commission denying requests in Answer filed by City of Struthers.
November 6 & 7, 1958 Continuation and completion of public hearings in the matter.

DISCUSSION:

1. Rate Base

The Commission’s Engineering Staff’s independent investigation disclosed recommended Findings of the Petitioner’s statutory rate base valuation to be $2,147,816.23 as of December 31, 1957, the date certain herein. The recommended findings, predicated upon the Engineering-Staff’s field analysis and other studies, -estimate the Reproduction Cost-New (R. C. N.) of the Petitioner’s plant and property to be $2,457,371.44 as the date certain and the statutory or existing depreciation to aggregate 13.186% or $324,039.21 upon that estimated R. C. N. valuation. With the proposed inclusion of an allowance of $14,484.00 for materials and supplies, the Engineering Staff’s recommended estimated statutory rate base valuation of the Petitioner’s utility plant allocable to the City of Struthers as of December 31, 1957, may be summarized as follows:

Reproduction Cost New $2,457,371.44
Less Existing Depreciation (13.186%) 324,039.21
Reproduction Cost New Less Depreciation $2,133,332.25
Plus Materials and Supplies 14,484.00
Total Statutory Rate Base Valuation $2,147,816.23

The Petitioner offered evidence with respect to cash working capital requirements, its Exhibit D proposing that $21,472.00 is the amount necessary for such working capital. However, by reason of enhanced gross annual revenues authorized herein, the funds to be maintained by the Petitioner for Federal Income Tax, Property Taxes, Gross receipts Tax, and other like taxes and reserves would more than offset the above-claimed working capital requirements, thereby precluding the inclusion within the rate base of allowance for cash working capital. See City of Cincinnati v. Public Utilities Commission of Ohio, 161 Oh St 395.

In light of the foregoing and the evidence adduced upon the record in this proceeding the Commission finds, therefore, that the Statutory Rate Base valuation of Petitioner’s plant and property allocable to the City of Struthers is $2,147,816.23.

2. Fair Rate of Return and Dollar Annual Return

Review and analyzation of the record herein and data in the file of this proceeding would appear to manifest a rate of return in the area of 3.00% on the statutory rate base valuation above ascertained. The precise percentage which represents a fair annual rate of return on the property used and useful in rendering the proposed utility service must necessarily be determined regulatorily, among other considerations, in light of the character of the utility involved, its capital ratios and costs, the income required by the utility to meet its fixed charges, including payment of dividends and reasonable reservations for earned surplus. See §4909.39 R. C. It is incumbent upon this Commission in the exercise of its legislative rate making functions and the regulatory discretion incident thereto, that it not authorize a rate of return which would afford a utility annual revenues in excess of that amount, quantitatively and qualitatively, which it requires by reason of the aforedelineated considerations. See City of Cleveland v. Public Utilities Commission, 164 Oh St 442.

With due regard to the value of the property of this utility used and useful in rendering water service to the City of Struthers, this Commission is of the opinion, and so finds, that a rate of return of 2.83% on the statutory rate base valuation is not unjust or unreasonable under the facts peculiar to this proceeding and will afford a yearly reasonable compensation for the service rendered. This percentage return, it is to be noted, approximates the mid-point of the zone of reasonableness to which the City’s opinion witness testified. Moreover, the dollar annual return to be realized therefrom by the Petitioners in the amount of $60,826.11 accords with the computed return which would accrue to this utility from the suggested schedules of rates filed and submitted by it in this proceeding. Accordingly, the Commission finds further that the annual return or “dollar annual return” to which this Petitioner is entitled, by applying the above-determined rate of return percentage against the dollar amount of the statutory rate base valuation ascertained herein, approximates $60,826.11.

3. Allowable Expenses

The annual operating expenses of this Petitioner, other than depreciation accruals, taxes and rate case expenses, aggregated $86,393.50 according to the recommended findings of the Commission’s Accounting Staff arising from its auditing examination of the Petitioner’s books and records.

Editorial review indicates that the Commission should make three adjustments in the items of expense of this Petitioner for purposes of this proceeding. The Company claims an amount of $13,600.51 for Special Legal Expenses, of which $2,485.33 is directly allocable to the City of Struthers for items such as labor negotiations, surveys, etc. The residual sum of $11,115.18 purportedly represents an allocation to the City of Struthers of special legal expense in connection with a litigated civil case involving the Mahoning Valley Sanitary District. The Commission is of the opinion, and so finds herein, that the record fails to substantiate Petitioner’s contention for the inclusion of this latter amount of $11,115.18 in the allowable operating expenses of this utility for purposes of this rate matter because it appears to be in the nature of a non-recurring expense item and the efficacy of such litigation or the relationship thereof with the Struthers plant is not manifested upon the record.

The Commission concludes, therefore, and accordingly finds, in connection with this item of expense, that the $2,485.33 would be more appropriately amortized over a fire year rather than a two year period by reason of the nature thereof and, therefore, includes this amount in the operating expenses of the Petitioner for such Special Legal and other Expenses rather than the $13,600.51 heretofore claimed.

The second adjustment made by the Commission is with respect to the estimated expense incurred by this utility in connection with the relocation of certain of its facilities pursuant to public authority by reason of the relocating of State Routes 616 and 90. Likewise, in view of the nature of this item of expense, the Commission finds it should be subject to amortization over a five year rather than a two year period. This adjustment effect's an additional reduction of $876.60 in the Petitioner’s allowable expenses as shown by the report of the Accounting Department in this matter.

The total reduction in the allowable allocable operating expenses of this utility, resulting from these two adjustments, is $13,980.04. Total allowable operating expenses, other than depreciation, taxes and rate case expenses, are found to be $72,413.46.

The third adjustment relates to the recomputation of the Petitioner’s Federal Income Tax Liability for purposes of this rate matter. The Commission finds that the proper amount allowable for this expense item is $35,290.18. Such latter tax liability is computed on the basis of the allowable gross annual revenues specified below and taxable deductions of $137,417.46, including an interest deduction of $27,440.79. Also included in said income tax recomputation is an allocation of the $25,000.00 surtax exemption in the amount of $1,914.00.

Total allowable expenses, including depreciation, taxes and rate case expense, is found by the Commission to be $145,266.85 computed as follows:

Operating Expenses, other than Depreciation, Taxes and rate case expense $ 72,413.48
Rate Case Expense • 5,000.00
Depreciation 11,758.01
Taxes, other than Federal Income Tax 20,805.20
Federal Income Tax 35,290.18
Total annual allowable expenses $145,266.85

4. Allowable Gross Annual Revenues

The gross annual revenues to be authorized the Petitioner, as pointed out heretofore, should be sufficient to enable this utility to meet all operating expenses including rate case expense, depreciation and taxes, as well as such reasonable compensation requisite to meet the earnings requirements of a comparable company whose value is substantially equivalent to the statutory rate base valuation ascertained in this proceeding. The allowable gross annual revenues, constituting the sum of the allowable expenses and the dollar annual return, may be computed as follows:

Allowable expenses $145,266.85
Return 60,826.11
Allowable gross revenues $206,092.96

FINDINGS:

Based upon the testimony and exhibits of record, the Commission makes the following ultimate findings:

(1) The Petition is filed in conformity with §4909.35 R. C.;

(2) Thé Commission has jurisdiction of the within matter under §4909.35 R. C.;

(3) The Petitioner’s statutory rate base for purposes of this proceeding is $2,147,816.43;

(4) The gross annual revenues of $133,575.86, which this Petitioner receives under existing rates and charges, are insufficient to yield yearly reasonable compensation to this Petitioner as of December 31, 1957, the date certain in this case;

(5) The fair annual rate of return on said statutory rate base, for the purposes of this proceeding, is 2.83%;

(6) The dollar annual return to which this Petitioner is entitled is $60,826.11;

(7) The Petitioner’s annual allowable expenses, including depreciation, taxes, and other expenses, are $145,266.85; and,

(8) The allowable gross annual revenues to which this Petitioner is entitled are $206,092.96, which will afford the Petitioner additional gross annual revenues of $72,517.10, the effectuation of which increase in additional revenues will require an increase of approximately 54.3% in the Petitioner’s presently authorized rates and charges.

It is, therefore,

ORDERED, That, in accordance with the opinion herein set forth, the Applicant, Ohio Water Service Company, be, and the same hereby is authorized to file with this Commission for its approval adjusted tariff schedules which shall provide said applicant with additional annual gross revenues of approximately $72,517.10. It is further

ORDERED, That the aforesaid tariff schedules shall become effective subsequent to their approval by this Commission or upon subsequent date as this Commission may designate.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Entered in the Commission’s Journal Everett H. Krueger, Jr., Chairman

February 10, 1959 Ralph A. Winter

A true copy: Edward J. Kenealy

James L. Fullin, Assistant Secretary Commissioners


source: Caselaw Access Project

author: By MeNAMEE, J.:

license: Public Domain

text:
    HOHENSEE, Plaintiff, v. AKRON BEACON JOURNAL PUBLISHING COMPANY et, Defendants.
    IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO, EASTERN DIVISION.
    Civil Action No. 34891.
    Decided February 20, 1959.
   OPINION

By MeNAMEE, J.:

Plaintiff, a resident of Akron, Ohio, has filed a Complaint against five corporations and four individuals under the antitrust laws of the United States, in which he seeks treble damages in the sum of Ten Million Dollars. Plaintiff alleges he is engaged in interstate commerce in the following businesses: Lecturing, public relations, selling of food products, selling of other products, publishing, writing and distributing books, periodicals and other publications, other businesses. He alleges that defendants conducted a conspiracy against him in restraint of interstate trade and commerce “consisting of the following acts: libel, slander, destruction of businesses, other unlawful acts.” He alleges further that defendants have slandered and libeled him by various newspaper articles, to which reference is made in the complaint. He claims that as a result of the alleged conspiracy he was injured in the destruction of his lecturing business, destruction of products sales, destruction of health, loss of freedom and liberty, other losses, injuries and damages.

Defendant American Medical Association has filed a Motion to Quash Service supported by an affidavit showing that the Association is not incorporated in Ohio; that the physician served with process was not an agent of the Association and the the Association has no office in Ohio. The Motion to Quash is granted. See Polhemus v. American Medical Assn., 145 F. 2d 557.

The Motion of the American Medical Association to dismiss for want of proper venue is also granted.

Defendants Beacon Journal Publishing Company (erroneously named as Akron Beacon Journal Publishing Company), John S. Knight, Robert Feldkamp, Better Business Bureau of Akron, Inc., Brush-Moore Newspapers, Inc., J. G. Green and W. J. Hine have filed Motions to Dismiss on the grounds: (1) Lack of jurisdiction of the subject matter; (2) Failure to state a claim on which relief can be granted.

The foregoing motions are granted on the ground that plaintiff has failed to state a claim on which relief can be granted. Black & Yates v. Mahogany Assn., 129 F. 2d 227. Plaintiff must allege facts from which it may be inferred reasonably that the public has suffered injury. Klor’s Inc. v. Broadway-Hale Stores, Inc., 255 F. 2d 214. Such facts must constitute a restraint of interstate commerce. Nelson Radio & Supply Co. v. Motorola, Inc., 200 F. 2d 911. Restraint of interestate commerce and injury to the public must be stated specifically even under the notice theory of pleading. Baim & Blank, Inc. v. Warren-Connelly Co., 19 F. R. D. 108: Kinnear Weed Corp. v. Humble Oil & Refining Co., 214 F. 2d 891; Shotkin v. General Electric Co., 171 F. 2d 236; Bader v. Zurich General Accident & Liability Ins. Co., 12 F. R. D. 437.

The antitrust laws do not purport to afford remedies for all torts committed by or against persons engaged in interstate commerce. Whether plaintiff has a cause of action for slander or libel is not a matter for determination in this action. See Hunt v. Krumboch, 325 U. S., at p. 826.

Plaintiff’s request for leave to file an Amended Complaint is overruled. However, plaintiff may file a Motion for Leave to Pile an Amended Complaint, accompanied by the proposed Amended pleading and a certification showing that copies thereof have been served on all moving defendants except defendant American Medical Association.


author: By DUFFY, J.

text:
    STATE, ex rel. TERREL, Relator-Appellant, v. PHILLIPS, Safety Director et, Respondents-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6024.
    Decided April 7, 1959.
    John J. Chester, John C. Burkholder, Columbus, for relator-appellant.
    Russell Leach, City Atty., Paul A. Scott, Asst. City Atty., Columbus, for respondents-appellees.
    (FESS, J, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By DUFFY, J.

Holly E. Terrel was a civil service employee of the city of Columbus, employed as a workhouse guard. In December, 1956, and early January, 1957, he was found to have been absent without leave by the Safety Director of the city of Columbus and was dropped from the rolls as of January 9, 1957. He learned of his removal when he returned to the workhouse to resume employment on January 25, 1957.

On February 1, 1957, Terrel notified the Civil Service Commission and asked for a hearing. The hearing resulted in a finding by the Commission that Terrel was absent without leave for more than five consecutive workdays, which, under Rule 14, Section C, Paragraph 1, of the Rules and Regulations of the Civil Service Commission of the City of Columbus, constituted a resignation; but the Commission found that Terrel made a satisfactory explanation of the cause of his absence (having gone to the hospital for surgery) and recommended that he be reinstated to his position with the consent of the Public Safety Director. Terrel was so notified of the Commission’s findings and recommendations in a letter dated March 11, 1957.

On March 15, 1957, the Public Safety Director sent a letter to Terrel reaffirming his previous order removing Terrel from the roster.

On July 18, 1957, Terrel demanded a final order from the Civil Service Commission; and on July 22, 1957, the commission notified him by letter that in view of the refusal of the Public Safety Director to reinstate him, their previous action was final.

On July 8, 1958, Terrel filed a petition for a writ of mandamus in the Common Pleas Court of Franklin County, asking that the Safety Director and the Civil Service Commission be ordered to restore him to his position as guard in the City of Columbus Workhouse. The trial court, after consideration of the pleadings and evidence, refused the writ of mandamus on the grounds that the Commission could not reinstate him without the consent of the appointing authority and that he was guilty of laches in waiting practically a whole year before appealing the case.

The relator filed his notice of appeal in this court, appealing on questions of law from the dismissal of his petition.

It is the contention of the relator that because he was not served with notice and reasons for his removal, his removal was void; that the Commission, in attempting to act under the provisions of its Rule 14, acted without authority; that since the acts of the Commission were a nullity, he cannot be guilty of laches in acquiescing in such acts.

While there is nothing in the record showing that Terrel received an order of removal and notice as to the reasons for his removal as required by §143.27 R. C., he was given the hearing, at his request, before the Civil Service Commission, who found that his absence without leave was excusable; and for some unexplained reason, he waited almost a year after his final correspondence with the Civil Service Commission to bring this action of mandamus. The trial court, in the exercise of its judicial discretion, found that the inaction of the relator constituted laches.

The relator cites the case of State, ex rel. Delaney, v. Holmes, 5 Oh Ap 1 (affirmed without opinion in 93 Oh St 480), in support of his contention that the acts of the Commission being a nullity, he could not be guilty of laches in acquiescing in such acts; but there is a definite distinction between the two cases. Where the Board acted without power to act, as in the Delaney case, it is true that there can be no acquiescence; but in the instant case, there was the power to act, and the only claim is that they did not proceed properly in the act of removal of the civil service employee. Since there was power to act, the relator could be found guilty in acquiescing in the alleged improper proceedings by the respondents.

We cannot say that the trial court was not justified in finding the relator guilty of laches as there was not only a lapse of time element involved, but there was an acquiescence in the activities of the Safety Director and the Civil Service Commission and a necessity on the part of the municipal government to operate the workhouse during the period of delay. See State, ex rel. Smith, v. Witter et al, 114 Oh St 357. Judgment of the Common Pleas Court affirmed at appellant’s costs.

BRYANT, PJ, PESS, J, concur.


author: By STEVENS, J.

text:
    INKS, Appellee, v. JONES & LAUGHLIN STEEL CORPORATION and CUYAHOGA VALLEY RAILWAY COMPANY, Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 24674, 24675.
    Decided June 25, 1959.
    Endress & Endress, for appellee.
    Bulkley, Butler, Rini & Schweid, for appellant, The Cuyahoga Valley Railway Company.
    Squire, Sanders & Dempsey, for appellant, The Jones & Laughlin Steel Corporation.

      (Judges of the Ninth District sitting by designation in the Eighth District.)
   OPINION

By STEVENS, J.

The two appeals on questions of law numbered above grow out of separate appeals prosecuted by the two defendants from a single joint and several judgment against both.

The appeals were submitted and heard together.

Gerald Inks was employed as a truck driver by Powers Trucking Company, and at 12:55 a. m., on August 31, 1955, drove his employer’s tractor and trailer, loaded with more than 16 tons of coke breeze, to the Clark Avenue gate of Jones & Laughlin’s Cleveland works. He stopped at the gate, reported the material he was bringing in to the guard, and told the guard, whom he knew from previous trips into the plant, that he knew where to take his load.

He then proceeded upon the premises of the Steel Corporation, through an underpass and up an incline, toward a point where an intraplant railroad crossed at grade the road upon which he was driving. He knew of the railroad track and its location from previous trips which he had made into the plant grounds.

When the tractor had reached a point two or three feet from the first rail of the railroad track, as he approached it, Inks testified that he stopped, looked to the right and to the left, saw nothing, proceeded on across said track for about eight feet, when he was struck from the right by a Diesel engine owned by defendant Cuyahoga Valley Railway Company, and being used upon what was termed the “ingot job,” to transport molds containing hot metal from the Jones & Laughlin Corporation open hearth furnace to the Blooming Mill, and returning the empty cars to the open hearth furnace. The railroad track was straight for a substantial distance to the right and left of the crossing in question.

' in that collision, Inks was thrown from his tractor onto the ground, and sustained certain personal injuries, for which he instituted action against the defendants, seeking recovery therefor.

Trial to a jury resulted in the return of a verdict for $17,500 against both defendants, upon which judgment was subsequently entered.

Motions for directed verdicts were made at appropriate times, and overruled as to both defendants, as were motions for judgment notwithstanding the verdict and for a new trial. These appeals on questions of law followed.

The assignments of error of the Cuyahoga Valley Railway Company are:

1. The trial court erred in overruling the motions of this defendant in the alternative: for judgment in its favor, or a directed verdict at the conclusion of all the evidence.

2. Said court erred in overruling the motion of this defendant for judgment in its favor notwithstanding the verdict of the jury returned in favor of plaintiff.

3. Said court erred in refusing to give to the jury before argument this defendant’s written requested instruction on the “loaned servant” doctrine.

4. Said court erred in refusing to give to the jury before argument this defendant’s written requested instruction on contributory negligence.

The assignments of error of the defendant The Jones & Laughlin Steel Corporation follow:

1. The trial court erred in overruling the motion of this defendant tor judgment in its favor or for a directed verdict made at the end of all the evidence.

2. The trial court erred in overruling the motion of this defendant for judgment in its favor notwithstanding the verdict of the jury or for a new trial.

3. The court erred in refusing to give to the jury before argument this defendant’s written requested instruction “B” (on contributory negligence of plaintiff).

4. The court erred in its general charge to the jury to the prejudice of this defendant.

To the writer of this opinion it appears necessary, conceding the negligence of the defendants, to first explore the question of whether or not, as a matter of law, the plaintiff is shown by the evidence to have been guilty of negligence which proximately contributed to cause his injuries.

The bill of exceptions reveals the following testimony of the plaintiff, Inks, elicited on direct and cross-examination.

Pages 130 to 132, inclusive:

“Q. From that underpass along the roadway for a certain distance you would travel before coming to another object, is that correct?
“A. Yes, sir.
“Q. And what was the next thing that you came to?
“A. A railroad track.
“Q. Now, coming up * * * out of the underpass and approaching that railroad track, will you tell the jury approximately how fast you were operating that vehicle?
“A. Oh, between three and five miles an hour.
“Q. And as you approached that railroad track, what, if anything, did you do?
“A. I stopped.
“Q. And will you tell the jury where you stopped with reference to the first rail of the railroad track and the front end of your tractor?
“A. Two to three feet from the first railroad track.
“Q. And as you stopped at the railroad track, what next did you do?
“A. I looked to the right.
“Q. And when you looked to the right, state what, if anything, you Observed?
“A. I saw nothing coming on the track.
“Q. And as you looked to the right, did you thereafter look another way?
“A. I looked to the left.
“Q. And when you looked to the left, what, if anything, did you observe?
“A. I saw nothing coming on the track even.
“Q. After making these two observations, tell the jury what next you did in connection with the operation of your truck.
“A. I began to let my clutch out and began to move into the blooming mill.
“Q. As you began to move, in what gear did you begin to proceed?
“A. First gear.
{<* * *
“Q. Then, as you proceeded, did you start from that point two or three feet this side of the railroad tracks and. proceed forward?
“A. Yes, sir.
“Q. Tell the jury approximately how far you proceeded before something next occurred?
“A. Eight feet.
“Q. And this eight feet, how do you measure that?
“A. Well, the front wheel was on the second rail.
“Q. Had crossed the first rail?
“A. Yes, sir.
“Q. And was to the second rail?
“A. Yes, sir.
“Q. And at that point will you tell the jury what, if anything, occurred.
“A. I was struck from the right.”

Page 135:

“Q. At the time that you put your truck in motion to proceed across these tracks, I want you to state whether or not you had any indication, of any kind whatsoever, that there was a locomotive being operated on the tracks at that time.
“A. I know it was a track, I know it was used, but I didn’t know it was used that night.
“Q. Were there any warnings of any kind at that track that would indicate a train was being moved at that time?
“A. No sir.”

Page 151:

“Q. * * * I will ask you to tell the jury the condition of the weather with respect to visibility on August 31. 1955, as you entered the plant.
“A. Well, it is smoggy and smoky down there just like any other steel mill and always (a) lot of conditions with that.
“Q. Sure, like any other mill.
“A. Hammer and loud explosions and a hissing sound.
“Q. After you entered, what is the fact as to whether or not there was smoke in the area?
“A. There was smoke in the air.”

Page 155:

«Q * * * go that you drove away from the American Steel & Wire and you found yourself ultimately down on Clark Avenue at the entrance to the Jones & Laughlin mill?
“A. Yes, sir.
“Q. You had been there many times before, hadn’t you?
“A. Yes, sir.
“Q. 30, 40 times?
“A. Not this blooming mill. I have been in—
“Q. Well, I didn’t say the blooming mill. You had been 30, 40 times into the Jones & Laughlin mill?
“A. Yes, sir.
“Q. Bringing in loads of material for your employer, Powers?
“A. Yes, sir.
“Q. * * * And you told him” (the gate guard) “you knew where to go?
“A. Yes.
■ “Q. * * * So you then started ahead right towards that underpass; is that right?
“A. Yes, sir.”

Page 164:

“Q. Now, you were conscious of the fact that there was a railroad track there, that is why you stopped?
“A. That is true.
“Q. You stopped because you thought there might be some risk that a train was coming?
“A. That’s true.
“Q. You looked because you thought a train might be coming?
“A. Yes, sir.”

The rule as to the duty of the driver of a motor vehicle about to pass over a railroad grade crossing on a public street has been recently stated by the Supreme Court of Ohio in Boles v. Baltimore & Ohio Rd. Co., 168 Oh St 551, as follows:

“The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and 'place as to be effective for that purpose. (Detroit, Toledo & Ironton Rd. Co. v. Rohrs, 114 Oh St 493, and Patton v. Pennsylvania Rd. Co., 136 Oh St 159, approved and followed.)”

See also: Gigliotti v. N. Y., Chi. & St. Louis R. R. Co., 107 Oh Ap 174.

The case of Erie Rd. Co. v. Lade, 209 Fed. 2d 948, is authority for application of the rule above stated as to public highways, to private crossings of an intraplant railroad.

Application of the rule above set out to the evidence disclosed by this bill of exceptions compels the unanimous conclusion of the members of this court that the plaintiff, in exercising his senses of sight and hearing, did not see what could have been seen had he looked effectively, and not hear what should have been heard had he listened effectively.

Interrogatory No. 2:

“If Gerald Inks had looked as he approached the crossing on August 31, 1955, would he have seen the approaching train?”

Answer: “No.”

Assuming that the interrogatory inquired whether, had he looked, as his outfit was stopped two or three feet from the first rail of the railroad at the crossing, would he have seen the approaching train, the negative answer of the jury could mean only that, because of the condition of smog, dust and cinders in the air prevailing at that time, and of the other conditions then and there pertaining, it was impossible for him to see the train approaching.

What, then, was his duty, to escape a conclusion of contributory negligence? That question is answered by the first paragraph of the syllabus in Baltimore & Ohio Railroad Co. v. McClellan, Admx., 69 Oh St 142, as follows:

“1. The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross a known track of a steam railroad at a street crossing, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train to undertake to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.”

This plaintiff, despite the presence of smog, dust, etc., and of the other conditions there existing, which prevented him from seeing the approach of the locomotive, according to the answer of the jury, without “taking other adequate means to ascertain the presence of danger,” proceeded onto the crossing, and was almost immediately struck.

His failure to take “other adequate means to ascertain the presence of danger” — to wit, the approach of the locomotive, made him guilty of contributory negligence which proximately caused his injuries, and that as a matter of law.

Our conclusion in that respect requires a reversal of the judgment under review, and the entry of final judgment for both defendants.

That conclusion likewise makes unnecessary a discussion of the other errors assigned.

Judgment reversed, and final judgment for defendants.

DOYLE, PJ, HUNSICKER, J, concur.


text:
    PROSPECT (Village), v. OHIO POWER COMPANY and OHIO EDISON COMPANY.
    Public Utilities Commission.
    No. 27588.
    Decided June 26, 1958.
   FINDING AND ORDER WITH RESPECT TO THE DEMURRER AND MOTION

The Commission coming now to consider the above-entitled matter; its previously issued Entry of February 13, 1958; the Demurrer filed on behalf of the Ohio Edison Company; the Motion filed on behalf of the Ohio Power Company; the Reply to said pleadings filed on behalf of the Village of Prospect; and being otherwise fully advised in the premises, hereby renders the following Opinion:

Nature of This Proceeding:

Under date of February 21, 1958, the Board of Public Affairs of the Village of Prospect, Ohio, filed a pleading with this Commission. Such pleading alleged that said Village is presently buying electric energy for resale from the Ohio Edison Company, and that it now desires to terminate this arrangement and to secure service from the Ohio Power Company. The Village prayed for an Order of this Commission directing the Ohio Power Company to institute service to said Village in accordance with the terms of that latter utility’s “Standard” Municipal Resale Power Rate as contained in its schedule of rates on file with this Commission.

The pleading, filed on behalf of the Village of Prospect, was docketed by this Commission as a Formal Complaint, and by its Entry of February 13, 1958, this Commission served copies of the same upon both the Ohio Edison Company and the Ohio Power Company, and required written Answers within fifteen days.

Under Date of February 28, 1958, the said Ohio Edison Company filed a Demurrer to the pleading, raising the question of the jurisdiction of this Commission to grant the relief prayed for.

Under date of March 1, 1958, the said Ohio Power Company filed a Motion for Dismissal of the case, also challenging the jurisdiction of the Commission to entertain the Complaint filed by the Village.

Under date of March 28, 1958, the Counsel for the Village of Prospect filed a Memorandum Contra to the respective Demurrers of the two Respondent utilities.

Under date of April 15, 1958, the said Ohio Power Company filed its Memorandum Contra to the Brief of the Village.

Commission Discussion:

The Commission has reviewed the well prepared and informative pleadings and Briefs filed by Counsel in this matter. It has likewise examined the statutes and case law in point. An administrative body, it may generally be assumed, is reluctant to deny its jurisdiction of any matters directly allied with its field of regulation; however, in this instance, an examination of the statutory and judicial authorities clearly suggests that the jurisdiction of this Commission is tenuous, at best.

This Commission is not unattentive to the problem being faced by the Village of Prospect in this connection; It owns and operates a distribution system for electric energy; it does not produce any electric power and must, perforce, purchase its entire supply of electric energy at wholesale for ultimate resale through its distribution system; and its present and seemingly only source of supply of electric power is the Ohio Edison Company, which has itself or through predecessor companies served the Village of Prospect for a number of years under private contractual arrangements.

The parties are presently unable to agree on a future contract. The Village of Prospect alleges that the existing inability to agree is atjributable, chiefly, to the demand of Ohio Edison that three new provisions be inserted in any future contracts, said provisions being cited by the Village to prescribe the following:

“(a) That the Village of Prospect be required to lease or purchase the transformers presently used by the Ohio Edison Company in rendering service on the sale of electric energy- for resale to the said Village.
“(b) That the metering of all electric energy sold in the future should lie on the company side of said meters, thus, causing the Village to incur any energy losses involved in passing through such transformers. This loss is presently borne by the company.
“(c) The Ohio Edison desires to reserve to itself the right to serve all customers who demand more than a 75 KVA load within the confines of any territory served by the Village of Prospect. . ,”

The Village, likewise, complains that Ohio Edison insists that all future contracts be for short duration (two years), to which proposal, the Village of Prospect objects.

In this situation, the Village of Prospect has sought service from the Ohio Power Company and has been refused. It finds that Ohio Power Company has its facilities located within 2.7 miles of the Village. It further finds that the Ohio Power Company’s tariff or its existing contracts with municipalities such as Prospect are more attractive, rate-wise, than the rates available through its present supplier, The Ohio Edison Company. The Ohio Power Company, however, has consistently refused to render service and asserts that Prospect is not situated within the operating area which Ohio Power purports to serve.

Upon this state of facts, many of which give rise to equities and considerations favorable to the Village, the Commission finds its statutory authority so limited as to leave it without power to grant relief.

The fundamental jurisdiction of this Commission in this regulatory area is set forth in §§4905.02 and 4905.03 E. C., the pertinent provisions of which read as follows:

“Sec. 4905.02 R. C. — As used in §§4905.01 to 4905.64, inclusive, R. C. ‘public utility’ includes every corporation, company, co-partnership, person or association, their lessees, trustees or receivers, defined in §4905.03 R. C., including all telephone companies but excepting such other public utilities as operate their utilities not for profit, such other public utilities as are owned or operated by any municipal corporation, and railroads as defined in §§4907.02 and 4907.03 R. C. (Emphasis supplied.)
“Sec. 4905.03 R. C. — As used in §§4905.01 to 4905.64, inclusive, R. C. <A) any person, firm, co-partnership, voluntary association, joint stock associations, company, or corporation, where ever organized or incorporated is:.....
“(4) An electric light company when engaged in the business of supplying electricity for light, heat, or power purposes' to consumers within this state.” (Emphasis supplied.)

It may be argued with effect that since the instant Complaint here involved does not pertain to a sale “to consumers” but, rather to a sale for the express purpose of resale, this Commission lacks jurisdiction over the parties and the transaction. It is a well-established and substantially axiomatic legal principle that this Commission, being a creature of statute, is totally devoid of implied powers. Thus, it has no powers other than those expressly granted by legislative enactments.

This appears, therefore, to be a matter which may well be entirely outside the area of regulation and within the purview of private contract.

The Commission may well sympathize with the contention of the Village to the effect that the “benefits” of the so-called “home-rule” powers “(Article XVIII, Ohio Constitution)” so eloquently outlined by the Ohio Edison in its Brief, are, when applied to this situation, illusory at best. (See page 6 of the Brief of the Village.) By reason of this jurisdictional hiatus, the Village of Prospect appears to have but two alternatives: (1) either reach a contract agreement with its present supplier, Ohio Edison or (2) invest in facilities to produce its own electric power.

In any event, it would appear that it is not necessary for this Commission to pass upon the basic jurisdictional issue at this time. Even should it be determined that this Commission is possessed of jurisdiction over the instant matter of resale of electric energy, the applicable statutes do not confer appropriate authority upon the Commission to require the Ohio Power Company to institute service to the Village of Prospect. This anomalous situation arises by reason of the recently enacted §4905.261 R. C., which was purportedly enacted by the General Assembly in 1953 to preclude the unnecessary duplication of electric facilities within this State. Such statute provides that, whenever a public utility proposes to furnish its electric energy to a consumer already being served, that the existing utility company rendering such service may appeal to this Commission, protesting the proposed change in service. If, after hearing, the Commission is of the opinion that the complaining public utility has been furnishing or will furnish an adequate service to the consumer, and if a duplication of facilities is involved, the Commission must order the new public utility not to furnish the service proposed. Service deficiencies are not in issue in this proceeding, thus, assuming jurisdiction to exist, the Commission is without authority, by virtue of this new statutory enactment, to require the Ohio Power Company to duplicate these electric service facilities already available to the Village of Prospect through the facilities of Ohio Edison Company.

Whatever may be the legal or equitable remedies available to the Village of Prospect, they do not lie with Complaint to the Public Utilities Commission. Hence, if a problem is evinced herein as alleged by the Village, its ultimate solution may well be with the legislature and appropriately conceived remedial legislation.

The Commission finds the Demurrer and the Motion to be well made and that the same should be sustained.

Ultimate Findings

Prom all of the pleadings filed in connection therewith, the Commission makes the following Ultimate Findings:

(1) That the Village of Prospect has filed with this Commission a pleading in which it asks this Commission to order the Ohio Power Company to supply the Village electric energy for resale;

(2) That the Ohio Power Company and the Ohio Edison Company have each filed pleadings wherein they challenge the jurisdiction of this Commission to grant the relief ordered; and

(3) The respective Demurrer of the Ohio Edison and the Motion of Ohio Power are well-made, and should be sustained insofar as this Commission is without apparent jurisdiction, by virtue of the provisions of §4905.261 R. C., to order Ohio Power Company to duplicate the existing facilities of the Ohio Edison Company for the sale of electric energy to the Village of Prospect for resale through the distribution facilities of such Village.

ORDER

It is, therefore

ORDERED, That the Demurrer of Ohio Edison and the Motion of Ohio Power should be, and the same hereby are, sustained and that this Complaint' should be, and the same hereby is, dismissed.

THE PUBLIC UTILITIES COMMISSION OP OHIO

Entered in Journal Everett H. Krueger, Jr., Chairman

June 26, 1958 Ralph A. Winter

A true copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


author: By BRYANT, PJ.

text:
    MIDWEST STRIPING CO., INC., Plaintiff-Appellee, v. THORMEYER, Acting Director of Highways, Defendant-Appellee, WALD INDUSTRIES, INC., et, Defendant-Appellant.
    Ohio Appeals, Tenth District,. Franklin County.
    No. 6077.
    Decided May 12, 1959.
    Knepper, White, Richards, Miller & Roberts, Columbus, for plaintiffappellee.
    Mark McElroy, Atty. Geni., I. Charles Rhoads, Asst. Atty. Geni., Columbus, for defendant-appellee.
    Robins, Metcalf & Fisher, Richard B. Metcalf, of Counsel, Columbus, for defendant-appellant.
   OPINION

By BRYANT, PJ.

This proceeding was begun in the Franklin County Common Pleas Court as an action to foreclose a lien upon funds due under highway contracts. It was brought by Midwest Striping Co., Inc., an Indiana corporation, plaintiff-appellee in this court, herein called “Midwest.” Listed as defendants below were George J. Thormeyer and Charles M Noble, substitute, who exercised the powers of State Highway Director, defendant-appellee in this court, herein' called “State Highway Director,” and Wald Industries, Inc., a Pennsylvania corporation, defendant-appellant in this court, herein called “Wald.”

It would appear that Midwest had certain contracts with the State Highway Department upon which the balance due and unpaid was $7,957.38, that Wald filed a lien or claim against said funds, that the work under the contracts was completed and only the lien or claim of Wald kept the State Highway Director from paying to Midwest the $7,957.38.

Midwest in the prayer of its petition asked that it be given judgment for $7,957.38, that Wald be required to set up its claim or be forever barred and for costs. According to briefs of Wald’s counsel, there were negotiations between Columbus attorneys for Midwest and Columbus attorneys for Wald which had been in progress for sometime when the above petition was filed. It nowhere appears that the filing of the petition was brought or otherwise came to the attention of local counsel for Wald.

From the record it does appear that steps for non-resident service were taken such as the filing of an affidavit for such service,, publication of notice and the mailing of a copy of the notice to Wald addressed to it at Huntingdon, Pennsylvania, without street address.

It appears that an answer was filed on behalf of the State Highway Director and that none was filed on behalf of Wald. The final publication was on May 28, 1958, and on June 20, 1958, default judgment was taken by Midwest against the Director of Highways for the full amount claimed and against Wald by forever barring it from any claim to this fund.

The State Highway Department gave notice to Wald that it was releasing the fund and this notice produced action for on June 30, 1958, just ten days after the taking of the default judgment, Wald filed (a) motion to vacate the judgment; (b) affidavit in support; (c) motion to stay judgment and (d) judgment entry of the court staying the judgment and restraining the department from releasing the fund. The following day, bond was filed.

A series of motions and entries followed and Wald tendered for filing its answer and cross-petition. When the dust all settled, the stay of the judgment was vacated, the answer and cross-petition were rejected and in general the motions of Midwest were allowed and those of Wald were denied.

Wald filed its notice of appeal on questions of law and fact, its brief and assignments of errors and its request to take new evidence. The appeal bond was fixed originally at $500, then reduced to $250.

The matter comes on for consideration upon the motion to dismiss filed by Midwest upon the ground that the only question is whether or not Wald received a copy of the notice, that this is a question of fact and that there is no evidence before the court upon which to make a decision.

But is that the only question in the case?

The amount in judgment was nearly $8,000. We can express no opinion upon the ultimate validity of Wald’s claim either in general or in its application to this particular fund, but the fact is that local counsel, an officer and an employee of long standing of Wald at the home office deny the notice ever was received.

Default judgments are not favored in the law and this one was but ten days old when first attacked. One question which might be raised upon the present state of the record is whether or not there was an abuse of discretion. No opinion is given on this question at this time.

Another question relates to the sufficiency of the tendered answer and the cross-petition. It is our judgment that the motion is not well taken and must therefore be overruled.

Wald has filed an application to take new evidence in the case and for directions. We are unable to find where this application is opposed. It is therefore approved with directions to take depositions before Armstrong and Okey and a suitable entry will be prepared.

DUFFY, J, concurs.

MILLER, J, not participating.


author: Per CURIAM.

text:
    CLELLAND, Plaintiff-Appellee, v. CLELLAND, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6160.
    Decided June 2, 1959.
    Edward F. Lynch, Columbus, for plaintiff-appellee.
    Mary E. Prentice, Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

On May 15, 1959, plaintiff-appellee made a motion asking this court to dismiss the appeal of the defendant-appellant for the reason that the notice of appeal was filed on March 23, 1959, the bill of exceptions was filed on April 7, 1959, and more than twenty days have elapsed since the filing of the bill of exceptions, and that the defendant has only filed a paper entitled “Brief on behalf of defendant-appellant,” which contained only assignments of errors. On May 18, 1959. the attorney for the defendant-appellant submitted an entry for additional time until June 1, 1959, in which to file briefs, which entry was not signed.

The record does indicate that the notice of appeal was filed on March 23, 1959, and that on April 7,1959, the bill of exceptions was filed with the Clerk of the Common Pleas Court and, on April 17, 1959, with the Clerk of the Court of Appeals. On May 8,1959, defendant-appellant did file a paper whose cover sheet contains the following language: “APPEAL ON QUESTIONS OF LAW, BRIEF ON BEHALF OF DEFENDANT-APPELLANT.” With the cover sheet, there was one page entitled “ASSIGNMENTS IN ERROR,” on which six errors of the trial court were listed.

The appeal here is on questions of law only, and the briefs not having been filed in time and no timely request for an extension having been made, the motion to dismiss will be granted’.

Motion to dismiss sustained.

BRYANT, PJ, DUFFY, J, concur.

MILLER, J, not participating.


author: By MILLER, J.

text:
    NEW YORK CENTRAL RAILROAD COMPANY, Plaintiff-Appellant, v. LINAMEN, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5986.
    Decided March 17, 1959.

      Wilson & Rector, Richard T. Rector, Columbus, for plaintiff-appellant.
    Lane, Huggard & Alton, Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, Ohio. The action was one for damages suffered by plaintiff as a result of the tortious act of the defendant committed on plaintiff’s railroad property in the south end of Columbus, Ohio. At the conclusion of the plaintiff’s evidence, the trial court directed the jury to return its verdict in favor of the defendant, and said jury returned such verdict. The court overruled plaintiff’s motion for a new trial and entered judgment on the verdict, from which judgment plaintiff prosecutes this appeal.

An examination of the petition alleges that prior to March 26, 1952, the defendant, John M. Linamen, was a contractor engaged in certain construction on the property of S. L. Grundstein & Sons, which property lies adjacent to yard track No. 3 in plaintiff’s railroad yard in South Columbus, Ohio. It further alleged that while so engaged, defendant constructed a certain batter board, one end of which trespassed on plaintiff’s property, and that defendant had no permission from plaintiff to erect such batter board.

The petition further alleged that on said date, one Ralph M. Balo was employed by plaintiff, The New York Central Railroad Company, as a yard conductor in its South Columbus yard; that at approximately 2:30 a. m., on said date, said Balo was standing on the side stirrup of the leading end of a car that was being shoved into track No. 3; that said car arrived in proximity to said batter board; said, Balo suddenly realized the car would not clear the board and, in order to protect himself from being knocked off the car, jumped and fell on the batter board, as a result of which he was injured; that a suit was filed against the plaintiff for said injuries which resulted in a settlement of the claim and, as a result, the plaintiff was required to expend the sum of $17,219.60. The plaintiff in this action is seeking to recover the amount it was required to expend for these injuries to Balo.

The record reveals that the plaintiff offered evidence tending to support all of the material allegations of the petition and then rested its case. Thereupon, counsel for the defendant moved for a directed verdict, and the same was sustained for the reason that the injuries complained of were consequential and did not result immediately from the alleged trespass.

The court cited 63 Corpus Juris 889, and Mawson v. Vess Beverage Company, 173 S. W. (2d), 607, wherein it was held that where the act complained of was consequential, it could not amount to a trespass. It is apparent that the court construed the action as being one for technical trespass to real estate, known in the common law as an action for trespass “quare clausem fregit.” It is true the plaintiff used the term “trespass” in the petition, but that term alone may not control the type of the action. The petition must be construed as a whole and not by mere extracts taken from parts thereof. It will be noted that the petition alleges facts which constitute a tortious act committed by the defendant on property in the possession of the plaintiff. It alleges that, without right or authority, defendant entered upon plaintiff’s said property and erected a structure, which structure resulted in injuries to one of plaintiff’s employees, and for which the plaintiff was required to pay a large sum of money in settlement.

The term “trepass” used in the petition may just as well have been “encroached,” and have described defendant’s tortious acts as an “encroachment” on plaintiff’s property. In such a case, the meaning conveyed would have been the same. In Ohio there is but a single form of action, the “civil action,” which is substituted for the old technical forms.

In 31 O. Jur., 591, it is said:

“Under the Code, therefore, it is immaterial what the form of action would have been at common law. There is but one general form of petition applicable alike to all causes of complaint, whether legal or equitable, or ex delicto or ex contractu, and without regard to the technical common-law forms of pleading.”

And, at page 583, supra, we find the following:

“The maxim of the common law that pleadings were to be taken fortius contra proferentem — construed most strongly against the pleader —is completely abrogated in Ohio, by the Code provision ‘that the allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties’; in accordance with which the courts in many cases have repeatedly declared that they must construe pleadings liberally in favor of the pleader with a view to accomplish substantial justice, in order to promote and facilitate the statement of a cause of action or defense.”

Now, if the plaintiff sets forth the facts of his case and upon those facts is entitled to a recovery, it matters not whether the wrong be considered a trespass or an act of negligence. Under the old common law, there were certain hidebounds and circumscribed forms of action. If the pleader did not bring himself squarely within one of those forms, he had no cause of action. But the Ohio Code of 1853 abolished the necessity of fitting a case into a tailor-made groove and broadened the rules of pleading.

It is our conclusion that the petition stated sufficient facts which were supported by the evidence to establish a prima facie case. It alleged and offered proof that the defendant contractor got over the plaintiff’s property line and erected a batter board: that he had no right to do so, and that the batter board caused the plaintiff the consequential damages, which are the subject of this action.

In the case of Keesecker v. McKelvey, 141 Oh St 162, a delivery man for a department store entered an enclosed porch to deliver a package when he actually had the wrong address. He left the door open, allowing a child to fall down the steps and injure herself. The accident was grounded on trespass to recover damages for the injuries to the child. The court found that a jury question was presented and, at page 168, we ñnd the following statement:

“If a jury should find the defendant’s employee was a licensee, its verdict would be for the defendant under the pleadings; if it should find him a trespasser and that his trespass was a proximate cause of the plaintiff’s injuries, then the plaintiff should prevail and would be entitled to recover such damages as were suffered as a direct result of the fall.” (Emphasis ours.)

The statement here made seems to cover the question we have for consideration, leaving to the jury for its determination the question of proximate cause.

We also note that the court stated, in sustaining the motion, that the plaintiff failed in its proof that it was the owner of the premises on which the injury occurred. We concur in the conclusion that ownership was not established by the proper degree of proof, but it was not incumbent upon the plaintiff to prove ownership. Even under the common law, ownership of the premises was not a requisite in order to maintain an accident in trespass, but mere possession was sufficient.

We think the law is well stated in 39 O. Jur. 498, Section 51, where it is said:

“The plaintiff must have possession at the time of the trespass. It is not necessary, however, in all cases, that he should be in possession at the time of the commencement of' the action. If the trespass in question is the one by which he was disseised, he may bring his action without waiting to regain possession, but he cannot sue for any act done afterward until he regains possession. Therefore, it is a prerequisite to the maintenance of an action in trespass for mesne profits while the plaintiff was wrongfully kept out of possession that he regain possession by an action of ejectment or otherwise.”

And, in Section 62, supra, it is said:

“One in possession of premises as a tenant may maintain suit for a trespass thereon. He may maintain such an action against a third person whose cattle break in and injure growing crops, or even, in a proper case, against his own landlord. Thus, a person entitled to the exclusive enjoyment of a crop growing on land may maintain trespass against the owner of the land, though the agreement only authorizes the cutting and carrying of it away.”

Our examination of the record reveals that sufficient proof of possession was established by the plaintiff in order to make a prima facie case, and possession, therefore, became a question for the determination of the jury.

For the foregoing reasons, we are of the opinion that the trial court committed prejudicial error when it sustained the defendant’s motion for an instructed verdict.

The judgment will be reversed and cause remanded for further proceedings according to law.

BRYANT, PJ, DUFFY, J, concur.


text:
    CITY HAUL, INC., In re.
    Public Utilities Commission.
    No. 3769.
    Decided September 15, 1958.
    Spetrino for Applicant.
    Shaeffer for Protestants.
   FINDING AND ORDER

This is an Application by City Haul, Inc., to amend Contract Motor Carrier Permit No. 3315 by adding the Henry Straus Co., Cincinnati, Ohio, and Cincinnati Beauty and Barber Supply Dealers Association, Cincinnati, Ohio, as shippers under said permit. Applicant desires to operate upon call of the shippers to and from the shippers’ places of business in Cincinnati, Ohio, to and from points and places in the State of Ohio. An appearance was entered on behalf of two carriers, but the only active protestant was Cincinnati-Loveland Motor Express, Inc.

This matter was heard by an Attorney Examiner who recommended that the Application be granted. Exceptions to the Examiner’s Report and Recommendation were filed on behalf of the Protestants. Our conclusions differ from those recommended by the Examiner for the reasons set forth herein.

City Haul is a trucking company engaged in local drayage and delivery work of various types in the Cincinnati area. It presently is serving four shippers under its Permit No. 3315. In its business the Applicant uses approximately 100 units of various types of equipment. A majority of its transportation service is performed within the greater Cincinnati area. It is presently serving both shippers involved in this Application in the exempt zone of Cincinnati with a daily pick-up and delivery service. For this service a charge of 38c a package is made to the Beauty & Barber Supply Dealers Association and a charge of 33c per package to the Henry Straus Co.

Under the contracts attached to the instant application the rates to be charged these two shippers are 55c per package. In case of a movement that would require the services of a truck and two men the rate is $7.06 an hour.

One of the shippers involved in the Application, Cincinnati Beauty & Barber Supply Dealers Association, is an association of seven companies which service beauty and barber shops. One of these companies operates a retail store while the other six are wholesale suppliers. The Association has been in existence for approximately 11 years. It was formed to perfect a credit group and to serve any other interests that might be of mutual benefit to the companies. The Association is supported by dues from its members. The Association itself is not a shipper of goods; it being proposed that shipments would be made for the individual members of the Association.

The Examiner found that the Association was a proper party to enter into a contract for motor transportation service from a private motor carrier. The Commission does not concur with this finding.

Sec. 4923.05 R. C., provides that an Application for a private motor carrier permit shall contain the names of the persons, firms, or corporations with whom the Applicant has contracted or proposes to contract as a private motor carrier; have attached to the Application an affidavit signed by each such person, firm, or corporation proposing to employ the Applicant as its private contract carrier; and be accompanied by a contract duly executed by the Applicant and each such person, firm, or corporation employing or proposing to employ the Applicant. It is the opinion of the Commission that these requirements and the provisions of §4923.07 R. C., forbid the granting of a private motor carrier permit which would authorize a carrier to transport property for an association of individual shippers. The permit holder must have an individual contract with each shipper and the permit must authorize transportation of property for each shipper.

The present record does not name the individual companies or parties which are members of the Association. If the permit were granted the Commission and its agents would not know whether or not the Applicant has authority to transport an individual shipment. Additional companies could secure the Applicant’s service merely by becoming members of the Association. The duty of the Commission to authorize additional motor carrier service to serve the public interest cannot be delegated to a private association.

The Commission agrees with the Examiner that the other shipper, the Henry Straus Co., is a proper party to enter into a contract for motor transportation service from a private motor carrier. This shipper is a wholesale tobacco distributor. It services an area east from Cincinnati to Portsmouth, north to Chillicothe and to Lima, Van Wert and St. Marys. The Commission also agrees that this shipper has a need for the service proposed by the Applicant. It has a need for prompt delivery service to its customers in this area.

The Examiner found that the service of the Protestant, CincinnatiLoveland Motor Express, Inc., was deficient in that it did not offer transportation service to the shippers at rates substantially equivalent to that of the Applicant. The Commission concurs in this finding but it is of the opinion that the service of the Protestant is deficient in another respect.

The Protestant is the holder of two certificates. Certificate No. 2349 authorizes operations on a regular route between Cincinnati and Love-land. Certificate No. 3279 authorizes the transportation of property over irregular routes from and to Loveland and Madisonville, which is within the Commercial Zone of Cincinnati. The record in this proceeding indicates that the Protestant confines its operations to service over its regular route between Cincinnati and Loveland. The president of the protesting carrier testified that he was ready, willing and able to transport any of the commodities that had been testified to by the two shippers and that he had never been called upon by either of the shippers to serve any point other than a point on his regular route. These general statements do not show that the Protestant is actually able to furnish the prompt delivery service required by the shipper, Henry Straus Co., in making deliveries to its customers in the entire area served by' the shipper. A need for motor transportation service should not be denied unless the protesting carrier can show that it is actually capable of performing the needed service.

Based upon the testimony and exhibits of record, the Commission finds that:

(1) The Applicant is a proper party to hold a private motor carrier permit;

(2) Cincinnati Beauty & Barber Supply Dealers Association is not a proper party to enter into a contract for motor transportation service from a private motor carrier;

(3) The contract between the Applicant and the Henry Straus Co. is bilateral and complies with the requisites of the statutes;

(4) The Henry Straus Co. requires the proposed trucking services of the Applicant;

(5) The service of the Protestant is deficient in that the Protestant does not offer transportation to the Henry Straus Co. at rates substantially equivalent to that of the Applicant and does not furnish the type of transportation service needed by the shipper in the entire area where the shippers’ customers reside; and

(6) The granting of the Application to amend Contract Motor Carrier Permit No. 3315 by adding the Henry Straus Co. as a shipper under said permit will not conflict with the public interest.

It is, therefore,

ORDERED, That the Application of City Haul, Inc., to amend Contract Motor Carrier Permit No. 3315 by the addition thereto of Cincinnati Beauty & Barber Supply Dealers Association as a shipper be, and the same hereby is, denied.

It is, further

ORDERED, That the Application of City Haul, Inc., to amend Contract Motor Carrier Permit No. 3315 by the addition thereto of Henry Straus Co., as a shipper be, and the same hereby is, granted.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Entered in Commission’s Journal: Everett H. Krueger, Jr., Chairman

September 15, 1958 Ralph A. Winter

A true copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


author: By EMMONS, J.:

text:
    WALLACE et, Claimant, v. BUREAU OF UNEMPLOYMENT COMPENSATION et, Respondent.
    Common Pleas Court, Summit County.
    No. 208703.
    Decided July 10, 1959.

      Robert E. Shuff, Akron, for claimant.
    A. L. Greenspun, Columbus, for Atty. Geni. Office.
   OPINION

By EMMONS, J.:

This is an appeal from the decision and order on rehearing of the Unemployment Compensation Board for the following reasons:—

1. The decision is unlawful, unreasonable and against the manifest weight of the evidence.

2. The decision is erroneous in that it attempts to produce an unreasonable and absurd consequence.

3. The decision is without legal foundation.

Counsel for the claimant Robert E. Shuff and the Attorney General of Ohio, through A. L. Greenspun, agreed to submit this appeal upon briefs, the record of the case and the transcript as perfected in the Bureau of Unemployment Compensation.'

The finding of fact made by the Board of Review of the Bureau of Unemployment Compensation is as follows:—

“On or about May 16, 1956, claimant was offered a referral to potential employment as a sales clerk at the Miracle Mart, Akron, Ohio. After talking the matter over with the interviewer, the claimant refused this referral for the reason that she would be required to work every fourth Sunday. At the time the referral was made all of the things pertinent to the job were explained to the claimant, i. e., that the job was as a sales clerk in what would be termed a general store; that the hours were to be from 12:30 P. M. until 9:00 P. M. on week days and 11:00 A. M. to 6:00 P. M. on Sundays; that the wages were to be $35.00 per week.”
“Claimant would have accepted the employment, would have worked the hours required, and would have been content with the wages, except for the fact that she would be required to work every fourth Sunday. Claimant further said that she had religious scruples regarding Sunday work, unless, it were necessary, or of an emergency nature; that she had strong religious convictions in this respect. She further said that Sunday work of the type offered here was illegal under the laws of the State of Ohio, and that this is an additional reason for her refusing the referral.”

The Board of Review held:—

“On May 16, 1956, the claimant refused to investigate a referral to potential work. Benefit rights are suspended as of said date until claimant secures employment subject to an unemployment compensation law, earns wages equal to her weekly benefit amount, and is otherwise eligible. Claim for the week ending May 19, 1956, is disallowed.”

The Board of Review in that part of the finding which they styled “Reason” there appears the following:—

Law applicable: §4141.29 (C) (3) R. C., provides as follows:—

(Sec. 4141.29C R. C.) “Not withstanding Division <A) of this section, no individual may serve a waiting period or be paid benefits for the duration of any period of unemployment with respect to which the Administrator finds that such individual:—

“(3) Has refused without good cause to accept an offer of suitable work when made by an employer either in person or at his last known address, or has refused or failed to investigate a referral to work when directed to do so by a local employment office of this state or another state.” (Emphasis by the court.)

Considering the fact that Unemployment Compensation Benefits are governed solely by statute and therein have their being, what then are the requirements for the claimant to establish in order to prove her right to participate in this award?

The first part of §4141.29 (C) (3) R. C., is as follows:—

“Has refused without good cause to accept an offer of suitable work.”

Did the claimant have good cause in refusing this offer of referral?

Partial testimony of the claimant, Louise E. Wallace, is as follows:—

“Q. And during the course of that interview did she (Gertrude Smith) tell you where the job was located Ma’am?
“A. Yes Ma’am.
“Q. Did she offer you a referral to the Miracle Mart Ma’am? Will you go ahead and answer.
“A. She told me there was a job open at the Miracle Mart.
“Q. Yes Ma’am, what else did she tell you about?
“A. I was to work every night until 9 o’clock. The wages were $35.00 a week and I must work every fourth Sunday.
******
“Q. And there was no question but what you would have accepted but for the reason it required you to work every fourth Sunday?
“A. Yes sir.
“Q. And for that reason you didn’t want to take the job?
“A. Yes sir.
“Q. Does your religion prohibit you from working on Sundays?
“A. The only religion that I understand prohibits you from it, it is the Jehovah’s Witnesses, but I do belong to a Protestant religion that forbids you from working on Sunday” * * *.

What is “good cause” referred in §4141.29 (C) (3) R. C.

It is that cause that to an ordinary intelligent man is a justifiable reason for doing or not doing a certain particular thing.

Can this court or any court attack the sincerity of the claimant’s religious belief?

The court takes judicial notice of the sacrifices made and tortures endured for the sake of religious beliefs — then certainly if one rejects an offer of referral because the acceptance would violate doctrines of her religion, that one has good cause and the claimant has complied with the legislative enactments in this respect and she has not violated these to the end that she would be denied relief.

The second part of the statute is as follows:—

(Sec. 4141.29 [C] [3] R. C.) “* * * or has refused or failed to investigate a referral to work when directed to do so by a local employment office of this state or another state.” (Emphasis by the Court.)

I have perused the testimony and all the evidence in this case and yet I do not find in any instance that the claimant refused or failed to investigate a referral to work when directed to do so by a local employment office of this state or another state. The only testimony we have concerning this referral, other than the claimant’s testimony, was taken from the claimant’s interviewer.

Partial testimony of Gertrude Smith:—

“Q. You were the interviewer who contacted Mrs. Wallace with reference to this job?
“A. Yes.
“Q. Did you make her out a referral card Ma’am?
“A. No. As a rule you do not make her out a referral card because she refused the job and therefore no card is given.”

No where in the testimony of Gerturde Smith do we find that she or anyone else from the Employment Office directed the claimant to investigate this referral to work. In fact there was testimony by Gertrude Smith, the interviewer, that there was no referral given because the claimant refused this work. However, to comply with the law she should have given a referral and told the claimant to investigate it, so this claimant cannot be charged with a non-conformance to the statute when it is not established by the evidence that the local Employment Bureau employees did not conform to a prerequisite.

The claimant has also injected into this case the fact that even if her religion would have permitted her to accept this referral, the contract of employment offered was illegal, the same being in contravention of §3773.24 R. C.—

“No person who is over 14 years of age shall engage in common labor or open or cause to be opened, a building or place for transaction of business, or require a person in his employ or under his control to engage in common labor on Sunday.” (There are certain exceptions which do not apply in this case.)

15 O. 225 — Cincinnati v. Rice, it was held that:—

“Common labor embraces the business of trading, bartering, selling or buying any goods, wares or merchandise.”

Sec. 3773.99 R. C.—

“Whoever violates §3773.24 R. C., shall be fined $25.00 for the first offense and for each subsequent offense not less than $50.00 nor more than $100.00 and imprisoned not less than 5 nor more than 30 days.”

A person cannot be compelled and it was not the intention of the legislature to compel a person to accept employment which would be illegal in one or more respects, and the fact that a claimant turns down an offer of referral because of this, does not make that one ineligible for benefits under the Unemployment Compensation Law.

The work for which the claimant was offered a referral was as a sales clerk in the Miracle Mart, which work did not come within the exceptions set out in the statute, and as a part of the contract of employment she had to work on Sunday every fourth week — which employment for that day was illegal and the claimant was justified in refusing this work whether she had a conscientious religious belief as concerns work on Sunday or not.

I am mindful that in appeals of this nature it is not the province of the reviewing court to determine this case as though originally heard by this court and that the court may not substitute his judgment for that of the original fact finding body, but I am limited to the task only of determining whether the decision of this body was unlawful, unreasonable or against the manifest weight of the evidence — and with this limitation in mind this court finds that the claimant had good cause in refusing to accept this offer of employment; that the same was prejulicial to her religious belief and partially illegal and that the decision and order on rehearing of the Unemployment Compensation Board is unreasonable and against the manifest weight of the evidence, and is without legal foundation and should be reversed and remanded for further proceedings.

Journal Entry to be prepared.


text:
    McFALL, Plaintiff-Appellant, v. CONNER, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 6097.
    Decided July 14, 1959.
    Lucas, Lucas, Prendergast & Albright, Robert E. Albright, Arthur J. Prendergast, Jr., of Counsel, Columbus, for plaintiff-appellant.
    Jenkins, Williams, Wendt, Murray & Deeg, Gordon E. Williams, of Counsel, Columbus, for defendant-appellee.
    (GRIFFITH, J, of the Seventh District, sitting in the Tenth District.)
   OPINION

By DUFFY, J.

This is an appeal on questions of law from an action begun in the Common Pleas Court of Franklin County.

In her amended petition, plaintiff-appellant set forth two causes of action, the first being for damages by reason of personal injuries growing out of a collision between the defendant’s automobile and the automobile of plaintiff’s husband.

The second cause of action práyed that a purported release obtained by an agent of the defendant be set aside and held for naught, as the purported release was obtained through fraud and misrepresentation and without adequate consideration and as a result of mistake, the mistake being that plaintiff was unaware that the document signed by her was a release as to her injuries, as she believed it to relate only to damages to her husband’s automobile.

The case was heard by the court, a jury having been waived. After the presentation of all of the evidence, the court found that the plaintiff had failed to prove by the required degree of proof that the release obtained by the defendant from the plaintiff was obtained through fraud and misrepresentation without adequate consideration and as a result of mistake.’ The court sustained the motion of the defendant to dismiss the second cause of action and found that the first cause of action could not be maintained for the reason that the release executed by the plaintiff constituted a full accord, satisfaction, and discharge of any and all claims which the plaintiff had or claimed to have had as a result of the accident. The court entered final judgment in favor of the defendant.

It is the plaintiff’s contention that the fact situation here is one which permits a distinction between fraud in the factum and fraud in the inducement and that while the trial court apparently considered her failure to read the release as indicating that she did not understand that she was signing a release, it is really her contention that she was told that the release she was signing was for damages to the automobile owned by her husband and that her signature to the release was necessary to' settle for those damages.

Appellant admits that the release signed was a release of all her rights arising out of the accident and that the appellee’s agent knew full well that it was a release of all rights of the appellant and that she was induced by the representative to sign, which was a mistake because her signature was not necessary to a settlement of the damages to her husband’s car.

It is apparent that the settlement talk among the parties revolved around the damages to the automobile, but it is not clear that the appellee’s agent told the appellant at any time that the release was only for property damage to her husband’s car. From the record we can only assume that she believed this was so because that was the only discussion had with the agent, she not realizing at the time that she had received any injuries as the result of the accident.

The Supreme Court of Ohio, in the case of McCuskey v. Budnick, 165 Oh St 533, stated:

“A person of ordinary mind cannot say that he was misled into signing a paper which was different from what he intended to sign when he could have known the truth by merely looking when he signed.”

In so stating, the court approved the first paragraph of the syllabus of the case of Dice v. The Akron, Canton & Youngstown Rd. Co., 155 Oh St 185, 98 N. E. (2d), 301.

From the fact situation in this case, we do not feel that, as a matter of law, there was fraud in the inducement. The trial court, having observed the witnesses, came to the conclusion that the evidence failed to prove by the required degree of proof that the release was obtained through fraud and misrepresentation without adequate consideration and as a result of mistake. The judgment will therefore be affirmed.

BRYANT, PJ, GRIFFITH, J, concur.


text:
    OHIO TELEPHONE SERVICE COMPANY, In re.
    Public Utilities Commission.
    No. 27401.
    Decided June 12, 1958.

      Sidney D. Griffith, of Power, Griffith & Jones, Columbus, for Ohio Telephone Service Company, Applicant.
    Gwynne B. Myers, Columbus, for the Village of Eaton, Preble County, Ohio, and Eaton Chamber of Commerce, Protestants.
    Roger C. O’Donnell, Covington, Solicitor of the Village of Bradford, for the Village of Bradford.
    William Saxbe, Atty. Geni., By James F. DeLeone, Asst. Atty. Geni., for The Public Utilities Commission of Ohio.
   OPINION

Subsequent to the filing of the Motion herein, a notice of hearing on said Motion was forwarded to the Mayors of all incorporated municipalities and to the Prosecuting Attorneys in the unincorporated areas within the service area of the Applicant. At the time of the hearing, representatives of certain villages entered their appearances, as listed above, and protested specifically that branch of the Motion pertaining to the filing of a trended inventory by plant accounts as requested by the Applicant.

Sec. 4909.18 R. C., is the statute under which the Motion in question was filed. This Section reads in part as follows:

“* * * If said Application is for an increase in any rate, joint rate, toll, classification, charge, or rental there shall also, unless otherwise ordered by the Commission, be filed with the Application in duplicate the following exhibits:
“(A) A detailed inventory and appraisal of its property used and useful in rendering the service referred to in such Application; * * *”

An examination'of this statute and a search of other applicable and related sections of the Revised Code evince no provision of law providing for a hearing by this Commission with respect to the “unless otherwise ordered” language of the above-cited statute. Although there is no express statutory authorization or requirement for such a hearing, the Commission has assigned and held such hearings heretofore, for its own edification, on many comparable Motions requesting the Commission’s authorization to substitute certain exhibits in lieu of those prescribed by said §4909.18 R. C., or to waive in part such specified exhibits.

For several years the Commission has caused notice to be given of the hearings on such motions to appropriate representatives of the municipalities and counties within the service area of the applicant utility. This was done, not because such municipalities and counties were necessarily considered to be formal litigants of record at this preliminary stage of the rate proceedings, but, by reason of the possibility that they well might become litiguous parties at a later stage. In the interest of time, and in order to convenience those who might later become public witnesses, the Commission considered it appropriate to issue such notice as aforesaid.

A review of the applicable statutes indicates, however, that the first service to municipalities contemplated by law in this type of rate proceedings is that prescribed by §4909.19 R. C., which reads in pertinent part as follows:

“* * * within fifteen days after the filing of such application or within such additional time as the Commission orders, a written report shall be made and filed with the Commission, a copy of which shall be sent by registered mail to the Applicants, the mayor of any municipal corporation affected by the application, and to such other persons as the Commission deems interested.
“If objections are filed with the Commission within 30 days after the filing of such report, the Application shall be promptly set down for hearing of testimony before the Commission or be forthwith referred to an Attorney Examiner designated by the Commission to take all the testimony with respect to the application and objections which may be offered by any interested party. * * *” (Emphasis added.)

It appears, accordingly, that after service of the above-designated •‘written report,” commonly known as the Secretary’s Report, municipalities and other proper parties in interest may then become formal litigants in a rate proceeding by filing objections to said Report.

The provisions of said §§4909.18 and 4909.19 R. C., and the “step-by-step” procedure therein prescribed for the administrative processing by the Commission and its staff of utility rate applications manifests clearly that the exhibits specified for attachment to a rate application are submitted for the information of the Commission and its staff. Such exhibitive data forms the basis for the staff’s independent investigation of the valuation of the utility’s plant and property, and its revenues and expenses. The investigation of the Commission’s staff is necessarily administrative in character and its recommended findings are required to be made available for the guidance and information of the municipalities, other proper interested parties, the applicant utility, and the Commission.

It is to be noted, however, that the Secretary’s Report is subject to objections by both the representatives of the utility users and the applicant utility. Sec. 4909.19 R. C. The administrative character of the staff investigation and the resulting Report thereof is evidenced by the fact that the date and findings therein contained, as well as the testimony of the Commission’s staff, is subject to cross-examination by all parties at the public hearings in the same manner as any other evidence or testimony. Further, the findings of the Commission’s staff, as set forth in said Report, are not binding upon the Commission in its final determinations. Lindsey v. P. U. C. O., 111 Oh St 6 and Mt. Vernon Telephone Corp. v. P. U. C. O., 163 Oh St 381.

The Commission is of the opinion that the Exhibit “A” tendered by said Applicant is sufficient to enable the staff of the Commission to perform the investigations required by the statute and therefore in view of the foregoing finds that the Motion of the Applicant is well made and should be granted.

It should be reiterated, however, that the burden of proof for all matters in support of its rate application is upon the applicant utility and, irrespective of the ruling herein, that burden must be met fully by this applicant upon the record of the public hearings to be held in this proceeding. It is, therefore,

ORDERED, That the Applicant is- hereby authorized to file Exhibit “A” as tendered with its Application as its inventory and appraisal. It is further

ORDERED, That nothing herein should be construed to imply that the Commission is prohibited from requesting any additional data as it may deem necessary in the premises.

THE PUBLIC UTILITIES COMMISSION OF OHIO

Entered in the Journal: Everett H. Krueger, Jr., Chairman

June 12, 1958 Ralph A. Winter

A true copy: Edward J. Kenealy

W. E. Herron, Secretary Commissioners


text:
    DAVIS, d. b. a. STEEL CITY CHEVROLET COMPANY, Plaintiff-Appellant, v. BOWERS, Tax Commr., Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 4015.
    Decided October 23, 1958.
    David C. Haynes, Youngstown, for plaintiff-appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

The evidence submitted to us on appellant automobile dealer’s appeal from the findings of the Board of Tax Appeals affirming the orders of the Tax Commissioner in the sum of $12,939.03, discloses that upon numerous sales of new automobiles on which the purchaser traded in his used automobile, the appellant collected from the used car owner tax on an inflated value of the used car.

For example the dealer would quote a new car worth $2,100.00 for $2,600.00, and would allow, the purchaser $1,500.00 for his used car worth $1,000.00, and collected $45.00 tax from the used car owner, being three percent of $1,500.00, and remitted but $30.00, being three percent of $1,000.00, to the Tax Commissioner.

Concerning such transaction appellant’s sales manager testified:—

“A. That amount has already been taken into consideration when we appraise that man’s automobile, when we have a $500.00 overallowance we can go ahead and figure that we have $515 to work with overallowance on that car.
“Q. But you didn’t tell that to the purchaser.
“A. No.”

Based on such testimony appellee rightly contends that appellant retained for his own use $15.00 of the $45.00 collected from the used car owner, which was his duty to collect and remit to the Tax Commissioner. Appellant dealer can not profit at the expense of the State of Ohio when he collected and failed to remit the full taxes on the valuation he made.

The above statement being a true statement of what transpired in the transactions giving rise to the assessments in this case it is immaterial how the dealer set up the transaction upon his books, there being no doubt that he collected from the owner of the trade-in car tax on the inflated price offered the purchaser for his car.

Finding no error in any respect urged, the decision of the Board of Tax Appeals should be and is affirmed.

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


author: By SKEEL, J:

text:
    KEMELHAR et, Plaintiff's-Appellees, v. KOHN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24829.
    Decided June 19, 1959.
    Hollingsworth & Hollingsworth, for plaintiffs-appellees.
    Richard C. Green, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law from a judgment entered against the defendant by the Municipal Court of Shaker Heights. The defendant took her automobile to the Gulf Service Station located at Cedar and Green Roads in the City of University Heights, Cuyahoga County, Ohio, to have her car washed. One T. J. Norman operated a car wash at the station as his independent business. When the defendant arrived at the station, she asked Norman if he would drive her to her sister’s home not too far distant from the station and return the car to be washed, and that her brother-in-law would bring her back when she was ready to pick up the car. The weather conditions were bad and the streets slippery. Norman refused at first to do as requested because of the condition of the roads, but on the defendant’s stating to him that she would be responsible for the car if anything happened while he was driving it, he carried out her request. On the way back to the service station, he had a collision with the automobile of the plaintiff, Dorothy Kemelhar, who carried fifty-dollar deductible collision insurance with the co-plaintiff, Merchants Indemnity Corp. of New York.

This action is brought to recover damage to the plaintiff Dorothy Kemelhar’s automobile, then being driven by her husband, caused by the alleged negligence of Norman, the action being founded on the theory that Norman was then acting as the agent or servant of the defendant.

The fact that Norman was given control of the automobile of the defendant was the direct result of defendant availing herself of Norman’s services as a car washer. So that, any attempt to create a relationship between the defendant and Norman different from that of independent contractors must be established outside the bargain of agreeing to wash defendant’s car. The plaintiffs put complete reliance in making out their case on an agreement said to have induced Norman to go with the defendant to her sister’s house to keep her engagement at that place, Norman testifying:

“She said, ‘Well, I want you to take me up to a friend of mine,’ a brother-in-law or something like that.
“And I told her, T don’t want to do it today, because it is too slippery outside.’
“She said, ‘Well, I want it done. If you go with me and bring my car back, I will have him bring me back,’ after she looked at the football game.
“I didn’t want to do it, because it was slippery. She said she would be responsible for it, so I took her up there.
“She asked me to go and bring her car back — And do it, that she would be responsible for it. I can’t deliver any cars unless people be responsible for it, because I can’t get insurance to cover it — I didn’t get insurance. I don’t have that much business out there to buy insurance.
“I told her that I didn’t have insurance.
¿ck H; H:
“She said she was going to be responsible.”

Another of plaintiffs’ witnesses testified:

“Well, like so many others come in that day, she wanted a wash, and she asked Norman if he could wash the car. Norman said, ‘Yes.’
“And she said, ‘Well, would you take me up to’ — I don’t know where they were going — ‘and bring the ear back and wash it’?
“He said, ‘No, because it is too slippery out there.’
“And there had been a lot of accidents on that corner that morning, so — ”
a* * *
“So he told her that if she would be responsible for the car in case anything should happen, that he doesn’t carry insurance, if she would be responsible if anything should happen, that he would take it up and bring her back.”

Assuming, only for the purpose of the agreement, that the agreement suggested by this testimony (which is every word on the subject in the record) was concerned with more than damage to the defendant’s car, which is indeed doubtful, the agreement in no sense shows the slightest intention of the parties to make Norman the defendant’s employee. The whole deal had to do with washing the defendant’s automobile. No control of Norman’s conduct was suggested or attempted. The assurance he demanded clearly indicated he was not her servant As an independent contractor involving a small sum of money, he desired, because of the condition of the streets, to be held harmless from any liability, whether to the defendant’s car or to other persons, that he might be subjected to in driving defendant’s car, in furtherance of his own business. Not a word of evidence indicates that Norman was engaged in the business of driving automobiles of others as a servant of the owner. Nor is it a usual thing for employers to contract with their employees to hold them harmless for their (the employees’) negligence.

The legality of attempting to indemnify one from liability because of his own negligence by contract has many times been questioned and in some cases held contrary to public policy. The statement of Norman shows that he wanted the assurance of defendant to assume liability if he should have an accident with her car as a result of his negligence because he did not have insurance. He thus directly indicated that he understood that he was acting as an independent contractor in his relation to the defendant.

Contracts between independent contractors of the character as here established by the evidence between Norman and the defendant are frequently encountered, while, within the recollection of this court, a contract btween an employer and his employee to indemnify such employee from loss that might be imposed upon him because of his negligence in carrying out his employer’s business has never been encountered. From the evidence taken in its most favorable light in favor of the plaintiffs, there is no evidence to support the theory of the plaintiffs that Norman was the servant or employee of the defendant. In addition to the reasoning above set out as to the effect of an indemnifying agreement between Norman and the defendant, the practice known generally in the community that automobile service stations publicly offer services like those rendered to the defendant by Norman gives assistance to a reasonable interpretation of the evidence here presented. Such evidence does not make out a prima facie case on the plaintiffs’ theory of defendant’s liability. See Councell v. Douglas, 163 Oh St 292, 126 N. E. 2d 597.

For the foregoing reason, the judgment of the plaintiffs is reversed and final judgment is rendered for the defendant. Exceptions. Order see journal.

HURD, PJ, KOVACHY, J, concur.