author: By CASE, J.

text:
    HARDWARE MUTUAL INSURANCE COMPANY, Plaintiff, v. McGINNIS et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21578.
    Decided May 14, 1954.

      Wiles & Doucher, Columbus, for plaintiff.
    Arthur M. Sebastian, Columbus, Otis B. Core, Washington C. H., for defendants.
   OPINION

By CASE, J.

This cause is before the court at this time upon Defendants’ motion to make definite and certain and to strike certain allegations from Plaintiff’s petition. Said motion and Defendants’ memorandum in support thereof were filed on March 19, 1954, and Plaintiff’s memorandum contra thereto was filed on April 6, 1954.

Branch I(a} of said motion seeks to have the word “guilty” stricken from the third paragraph of Plaintiff’s petition.

In support of branch 1(a), Defendants’ memorandum contends:

“(a) The use of the word ‘guilty’ in a civil case is improper and prejudicial.” Obrecht v. Tallentire, 43 Oh Ap 376.

Plaintiff’s memorandum contra thereto states:

“The first branch of the motion of the defendants has to do with the descriptive word of ‘guilty’ and we feel that it is descriptive of what the defendant failed to do and advises the defendant what the claims of the plaintiff are in regard to the violation of the law and therefore it being purely descriptive, we think that the first branch of the motion should be overruled.”

In the case of Obrecht v. Tallentire, 43 Oh Ap 376, 13 Abs 218, 183 N. E., 295, the Court of Appeals for Ashland County held, among other things, that:

“4. Word ‘guilty’ should not be used in defining negligence, not being synonymous therewith.”

It is clear that Defendants’ objection is directed to prejudicial conclusions and inferences arising out of Plaintiff’s use of the word “guilty” as related to and connected with four specifications of negligence set forth immediately thereafter in said third paragraph.

Plaintiff has failed to cite any authority in support of its contention that the word “guilty,” as used in said petition, “is descriptive of what defendant failed to do.”

This Court is in accord with and subscribes to the pronouncement of the appellate court in Obrecht v. Tallentire, supra; and is of the opinion that such use of the word “guilty” clearly affects more than a mere characterization or description of the acts complained of to such a degree and extent as to be tantamount to a conclusion which is unduly prejudicial. For the reasons above set forth, this Court is of the opinion that branch 1(a) of Defendants’ motion is well made and should be sustained.

Branch 1(b) of Defendants’ motion seeks to have the entire second specification of negligence stricken from Plaintiff’s petition.

Said specification is set forth in Plaintiff’s petition as follows:

“The plaintiff says that the defendants were guilty of negligence, which negligence was the direct and proximate cause of the damage to the building of W. W. Williams, doing Business as Jeffersonville Auto Company, in the following particulars, to-wit:
“2. In failing to have their motor vehicle under control at said time and place to avoid a collision with said train.”

Defendants’ memorandum, in support of branch 1(b), contends:

“(b) The second specification of negligence is a pure conclusion of law. There are no operative facts set forth upon which this allegation is based.”

Plaintiff’s memorandum contra the aforesaid branch 1(b) states:

“The second branch has to do with the striking from the petition of the second specification of negligence and we wish to state that there are operative facts in the petition which indicate the defendant did not have his vehicle under control and collided with the train and it would be evidence adduced at the time of the trial, of course, to determine whether or not this fact actually existed at the time of this occurrence and, therefore, this branch of the motion should be overruled.”

In 31 O. Jur., 552, et seq., it is stated:

“It is a fundamental principle that a pleading should state facts and facts only, and not mere legal conclusions or conclusions of law or the conclusions of the pleader, otherwise, the opposite party cannot know with any certainty, from the averments of the pleading, what he is required to meet; it is the duty of the court to declare the conclusions and of the pleader to state the premises. It is said to be the positive duty of the pleader to avoid pleading mere legal conclusions or mere conclusions; allegations which stand as mere averments of legal conclusions are. as a pleading, of no legal effect or significance, and are generally ignored in the construction and consideration of the pleadings of which they are a part. * * *” and, under Section 23 (31 O. Jur.) beginning at page 557, it is stated in part as follows:
“The line of demarcation between allegations of facts and allegations which are objectionable as mere legal conclusions is not easy to state, although the reports are interspersed with numerous statements concerning whether particular allegations are objectionable as legal conclusions; it is thought that the best assistance to the pleader will be given by a summary of particular allegations that have been passed upon by the courts.
“The following allegations have been declared to be statements of conclusions of law, or legal conclusions: * * * that ‘by the exercise of ordinary care and prudence’ one could have avoided an accident; * * *”

It is axiomatic that, in an action for negligent injuries, the petition must show a legal duty owing from the defendant to the plaintiff, defendant’s breach of that duty and injury to plaintiff proximately resulting from such breach. The rules of good pleading require that such duty must be shown by the allegation of ultimate or operative facts from which the law will imply the duty so owing rather than, by direct averment of such duty. If the ultimate or operative facts alleged disclose such duty, then it is neither necessary nor proper to allege the legal conclusion that the duty existed. Since the pleading is addressed to the court, it becomes the duty of the court to apply the law to the operative facts.

In Railroad v. Kistler, 66 Oh St 325, the Supreme Court of Ohio held, among other things:

“2. In an action founded upon negligence, the petition should state the acts of commission or omission which the plaintiff claims to have caused the injury; * * *”

In the light of all facts otherwise alleged in Plaintiff’s petition, it is clear that Plaintiff’s second specification of negligence stands as a mere averment of a legal conclusion which is improper and unduly prejudicial.

In the case of Klatt v. Industrial Commission, 28 Abs 323, our court of appeal has held that — “It is improper to plead evidence, conclusions and inferences;^* * *”

With respect to the use of specifications of negligence, this Court deems it pertinent to note the following comments of Judge Bell upon granting a similar motion to strike in the case of Brown v. Pollard, 51 O. O. 214, 66 Abs 253, 112 N. E. (2d), 692:

“Counsel for plaintiff has stated in his memorandum that ‘it has long been a form of good pleading to separately state and number different specifications of negligence.’ This court cannot agree that it constitutes good pleading. I realize that due to the tolerance by courts, both trial and review, of the practice of setting out specifications of negligence they have received some measure of respectability in pleading, to the extent even that they are included, in some of the form books. But I am also firmly convinced that in the vast majority of cases in which they are used they are unnecessary and in many cases improper. Such specifications can be intended for but one of two reasons: either they are designed to influence, perhaps prejudice, a jury; or they are intended to inform the court of what he is expected to charge. If for the former reason, they are improper; if for the latter, they are in most cases unnecessary.
“Specifications of negligence such as appear in this petition (although no more so here than in the vast majority of cases) are an open invitation to opposing counsel to move to strike them. And thus they become a gateway through which enters much of the criticism of ‘too much delay’ that is often directed, with considerable justification, at the legal profession.”

This Court is in accord with and subscribes to the comments and reasoning of Judge Bell as quoted and set forth above. For all of the reasons hereinabove set forth and discussed, this Court is of the opinion that branch 1(b) of Defendants’ motion to strike is well made .and should be sustained.

Branch 1(c) of Defendants’ motion seeks to have the entire third specification of negligence stricken from Plaintiff’s petition.

Said specification reads as follows:

“3. In failing to stop their motor vehicle and yield the right of way to said train at said time and place.”

Defendants’ memorandum in support of branch 1(c) contends:

“(c) The third specification of negligence is another conclusion of law. The petition is to be composed of statements of ultimate fact and not conclusions. If the evidence upon the facts alleged in the petition is such as to raise a question of right-of-way, the court will charge upon that subject. Right-of-way is not an absolute right, but is conditioned upon lawful operation by the party claiming the right-of-way. There are no facts alleged in the petition raising any question of right-of-way.
“Furthermore, there are no operative facts set forth, the existence of which would require the driver of the motor vehicle to stop.”

Plaintiff’s memorandum contra the aforesaid branch 1(c) states:

“The third and fourth branches of the. motion are of a similar character. The plaintiff has set forth operative facts, that is, the manner in which the collision occurred and the resulting damage to the premises of the plaintiff’s insureds and, of course, there will have to be evidence adduced at the time of the trial to prove the allegations contained in the petition resulting from the operative facts pleaded and the defendant is here asking the Court to rule on something that is not at issue at the present time and that is whether or not there is any evidence to sustain the allegations of negligence on the part of the plaintiff and, under the situation as it is at the present time, the Court should overrule these two branches of the motion. If, at the trial of the case the pi a in - tiff is not able to adduce evidence to sustain the allegations of negligence, then the motion to strike would be fit and proper but as pleaded, if proven, they would be determinative issues for the jury on the question of whether or not the defendant was guilty of negligence in the matter stated and if they were the proximate cause of the accident.”

In 34 O. Jur., at pages 788 and 789, it is stated:

“1093. Reciprocal Rights and Duties of Public and Railroad. — The rights and duties of a railroad company to use of its road at a crossing with a highway and those of the traveling public to the use of the highway are co-ordinate and equal; neither has an exclusive right of passage. Both the railroad company and the public have the right to the use of their respective rights of way and the highway, and each must act with reasonable care and prudence and must not interfere unnecessarily with the use by the other.
“Despite this reciprocal and equal right of a railroad company and the public at crossings, it is still true that as between a person about to cross over a railroad at a crossing and a train of cars approaching such crossing the train has the right of way. This is so because the person can stop within a few feet, whereas the train cannot. This difference in the use made by the traveler and by the train is such as to constitute a difference in right, and it is error merely to charge the jury without qualifications that the rights and duties of the railroad company and the traveler are mutual and reciprocal. A charge prescribing the rule of conduct for one approaching the crossing, but failing to make a statement concerning the possible negligence of a plaintiff in going upon a crossing before a rapidly approaching train, has been held to be incomplete, but not substantially prejudicial.
“A railroad company, however, has no greater rights to a crossing than the traveler, except the right to priority of passing, and it has no right to do any act which will mislead a traveler and expose him to needless danger.”

In 44 American Jurisprudence, at pages 733 to 735, it is stated:

“495. Reciprocal Rights and Duties of Railroad Companies and Public. — The obligations, rights, and duties of railroads and travelers upon highway crossings are mutual and reciprocal; neither has an exclusive right of passage. The railroad has the right to use its tracks, and the public have the right to use the crossing, and each should act with due regard for the rights of the other. The trainmen should accommodate the traveler when it can be done with safety, and the traveler should respect the rights of the trainmen and not attempt to subject them to unnecessary or unreasonable trouble or inconvenience. Both parties are charged with a mutual duty of keeping a careful lookout for danger; and the degree of diligence to be exercised on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring fairly to perform his duty. Neither is relieved from the duty of carefully watching the crossing to avoid -accidents by the assumption that the other is doing his or its whole duty at such a place, and each has a right to assume that the other will be controlled by such considerations as would influence the conduct of men of ordinary care and prudence. Each must exercise care commensurate with the risk and danger involved; the greater the danger, the greater the care required of both.
“But while the relative rights and obligations of a railroad company and travelers on the highway are reciprical, it is the privilege- of the railroad company that its trains shall have the right of way, and that all persons on the highway shall yield precedence to the trains. From the character and momentum of a railroad train, and the requirements of public travel by means thereof, it cannot be expected that it shall stop and give precedence to an approaching traveler to make the crossing first; the traveler must yield the use of the railroad track to an approaching train, and the conduct of the train crew may be lawfully predicated upon the expectation that travelers will observe their duty in this regard. This rule applies also to streetcars crossing steam railroads. It is not the duty of the railroad company to have its trains under such control as to be able to stop and avoid a collision. On the other hand, the train should not stop on the crossing, or, by moving backward and forward, subject the traveler to unreasonable delay in crossing after the train has first passed. The right of the public in a highway crossing a railroad is simply a right of passage across the railroad. The highway crossing is for the purpose of passage from one side of the railroad to the other, and any other use thereof, whether between the tracks or between the rails, is unwarranted.”

In the light of the legal principles as discussed and referred to in the above quotations and the pertinent court decisions cited with respect thereto, it is clear that Plaintiff’s third specification of negligence states a legal conclusion which implies that said train had an exclusive and absolute right of way at said crossing, and that said train crew had no duty to use any degree of care to prevent injury at said crossing.

It is equally clear that Plaintiff’s third specification of negligence also implies that the law imposes an absolute and unqualified legal duty upon Defendants to yield said right of way to said train without any consideration or regard for surrounding facts and circumstances then and there existing.

It is also of pertinent interest to note at this point the following comment and authority cited by United States Circuit Judge Martin in the case of Detroit, Toledo & Ironton Railroad Co. v. Yeley, 39 O. O. 49 (at pages 53 and 54), 165 F. (2d) 375, 380:

“* * * A railroad company does not have the exclusive right of way at a street crossing. Texas & P. R. Co. v. Cody, 166 U. S., 606, 17 S. Ct. 703, 41 L. Ed., 1132; 44 Am. Jur., Section 493.
“In Robinson v. Pennsylvania R. Co, 117 Oh St 43, 58, 158 N. E., 83, 88, decided after the Rhors case, Judge Allen, now of this court, writing then for the Supreme Court of Ohio, in upholding a verdict for the plaintiff in an action based upon a collision between a railroad train and an automobile at a grade crossing, said; ‘While an automobile driver rests under the duty of looking and listening before he crosses a railroad track of whose existence he is aware, it is not as a matter of law his absolute and unqualified duty to stop before he goes upon such railroad track unless his looking or listening discloses the presence of a moving train.’ ”

As hereinabove cited, in the case of Klatt v. Industrial Commission, 28 Abs 323, our court of appeals has held that it is improper to plead evidence, conclusions and inferences; and, it appearing that Plaintiff’s third specification of negligence is a conclusion of law which is improper and unduly prejudicial, therefore, it must be concluded that branch lie) of Defendants' motion to strike is well made and should be sustained.

Branch I (d) of Defendants’ motion seeks to have the word “stop” stricken from the fourth specification of negligence in said petition.

Said specification reads as follows:

“4. In failing to stop, look and listen where it was effective before attempting to cross said railroad tracks, at said time and place.”

Defendants’ memorandum in support of branch 1(d) contends:

“(d) As stated in the preceding paragraph, there are no operative facts set forth in the petition showing any duty on the part of the driver of the motor vehicle to stop at the railroad crossing. There is no common law duty to stop.” Baltimore and Ohio Railroad v. Davidson, 19 Abs 406.

Plaintiff’s memorandum contra branch 1(d) has been quoted and set forth above in this Court’s consideration of branch lie) of said motion.

In the case of Baltimore & O. R. R. Co. v. Davidson, 19 Abs 406, the Court of Appeals for Montgomery County (which is also the Court of Appeals for Fayette County) held, among other things:

“8. There is a well defined obligation on traffic to look and listen before crossing railway tracks, but it is not the law of Ohio that traffic must stop under such circumstances; generally it is for the jury to determine whether or not the existing circumstances required an individual to stop.” and, at page 411 thereof, the court stated in part:
“As a general proposition it is not the law of Ohio that traffic must stop before crossing a railroad track. There is the well defined obligation to look and listen. Generally it is for the jury to determine whether or not the situation as it existed was such as to require the individual to stop.”

Therefore, it is clear that our court of appeals has expressly held the law of Ohio to be in accord with the proposition stated by Judge Allen in the case of Robinspn v. Pennsylvania R. Co., 117 Oh St 43, 58,158 N. E., 83, 88, wherein it was stated:

“While an automobile driver rests under the duty of looking and listening before he crosses a railroad track of whose existence he is aware, it is not as a matter of law his absolute and unqualified duty to stop before he goes upon such railroad track unless his looking or listening discloses the presence of a moving train.* * *”

It is equally clear that Plaintiff’s use of the word “stop,” as set forth in said fourth specification of negligence, implies that the law imposes an absolute and unqualified legal duty upon Defendants to stop before attempting to cross said railroad tracks and that such duty precludes any consideration or regard for surrounding facts and circumstances then and there existing.

It is equally obvious that the law of Ohio does not impose such absolute and unqualified duty; that the use of the word “stop” as averred in said specification of negligence states a legal conclusion which is'unduly prejudicial; and that, by reason thereof, the word “stop” should be stricken from the fourth specification of negligence.

Branch II of Defendants’ motion seeks to have said petition made definite and certain by requiring Plaintiff to state therein:

“I. The relationship it claims between the two defendants.
“II. Which of the defendants it claims was driving the motor vehicle.”

Defendants’ memorandum in support thereof contends:

“We are well aware of the fact that the Court of Appeals of this district has held that it is possible for two persons to be operating a motor vehicle. Neverthless, the Court has not held that defendants are not entitled to have a petition made definite and certain when it is couched in the language used in this petition. The plaintiff knows that a master and servant relationship existed between the two defendants. If the plaintiff alleged the facts it knows that there would be a misjoinder of parties upon the face of the petition. The defendants are certainly entitled to know what the plaintiff is claiming, as to the relationship between the two defendants and to know which of the two defendants plaintiff claims was actually operating the motor vehicle.”

It does not appear that Plaintiff’s memorandum contra sets forth any particular contention with respect to those grounds urged and relied on in branch II of Defendants’ motion.

It is assumed that the appellate court decision referred to in Defendants’ memorandum was the case of Davis v. Montei et al., 38 Abs 147, 49 N. E. (2d), 584. According to the head-notes to that case, as reported in 49 North Eastern Reporter, 2d Series, the Court of Appeals for Franklin County (which is also the Court of Appeals for Fayette County) held:

“1. In action for damage to automobile colliding with automobile owned by one of four defendants, petition was not defective because it charged all defendants with negligence in operation of automobile.
“2. Dismissal of petition because of plaintiff’s refusal to amend it, as ordered by court, was ‘final order,’ correctness of which reviewing court will determine on appeal.
“3. In action for damage to automobile colliding with automobile owned by one of four defendants, court erred in dismissing petition on plaintiff’s refusal to amend it by stating which defendant had actual physical control of defendant’s automobile, relationship of defendants, and facts showing joint enterprise among them, though more detailed allegation of facts would have disclosed that some of defendants were not negligent.”

Beginning at page 585 (49 N. E. 2d), the appellate court stated in part as follows:

“Defendants interposed motions on behalf of each of the defendants, and all identical in language. The motions in substance ask that specifications of negligence 1, 2, 3 and 4 be stricken. As an alternative it was requested that if either of the above requests be overruled then an order requiring plaintiff to make the petition more definite and certain by stating (a) which defendant plaintiff claims had actual physical control of the Buick automobile; (b) the relationship claimed by plaintiff to exist between each defendant: (c) if it is claimed that a joint enterprise existed, by stating the facts to show such joint enterprise.
“The trial court sustained defendants’ motions, and plaintiff was ordered to amend the petition. Counsel for plaintiff declined to make the amendment ordered by the court, and thereupon the court dismissed plaintiff’s petition without prejudice. This is the final order from which plaintiff gives notice of appeal.
“The sole and only question for our determination is whether or not the court was in error in dismissing plaintiff’s petition for failure to amend, as the trial court had previously decreed.
“Apparently the trial court was of the opinion that the petition was defective wherein it charged all defendants with negligence in the operation of the Buick car. A pertinent part of the journal entry reads as follows: ‘The court finds that said motion is well taken in that: but one person can operate a car, and that in the defendant’s car were minors and in order to hold the occupants of the defendant's car liable with the operator it would be necessary to show a common enterprise or agency.’
“We are inclined to think that it is incorrect to say that only one person can operate a car. We can agree that this would be the correct method of operation, but it is physically possible for more than one to participate in the operation. For obvious reasons we refrain from giving examples, of how two, three or four persons might all be actually participating in the physical operation of the automobile. These very acts of multiple participation would probably be negligence within themselves. The details of alleging which one performed the various acts which constituted the operation, would be evidential. We will venture the guess that plaintiff would orobably find it impossible to produce the evidence supporting his allegations of multiple operation, but as a matter of pleading we do not think it defective, particularly when we find that such a situation is possible.
“Counsel for defendant in his brief makes the claim that in order to constitute a joint liability it would be necessary to allege and prove a joint enterprise. In his brief he makes the broad- statement that the rule is so well recognized that no citation of authorities is necessary.
“In a cursory, independent examination we are led to the conclusion that there is very serious doubt as to whether or not the facts of a joint1 enterprise are required to be pleaded, where there is the allegation of joint operation. We do find that there is an abundance of authority upon the proposition that the trial court should not charge on the question of joint enterprise unless properly in the case through evidence.
“We are not basing our conclusions on the theory of joint enterprise.
“Counsel for defendant-appellee argue that an allegation of facts in more detail would at once disclose that some of the defendants at least were in no sense guilty of any negligence and that they should not be put to the bother of being continued in the litigation. This is true of any defendant when improperly sued, but the courts have found no means of avoiding plaintiff’s filing unfounded actions, except through judgments and the penalty of costs.
“We are constrained to the view that the trial court was in error in dismissing plaintiff’s petition. It is highly probable that plaintiff would have difficulty in presenting proof. If and when that time comes, the Court can dismiss as to other defendants against whom no evidence is presented, or require an election if a state of facts is such that joint action may not be prosecuted.”

Upon due consideration, we must conclude that the case of Davis v. Montei, supra, is authority for the proposition that a petition sounding in negligence is not defective merely because it claims that two defendants participated in the physical operation of a motor vehicle; and that a motion to make definite and certain, by requiring plaintiff to state (a) the relationship between said defendants and (b) which of said defendants was driving such vehicle, should be'overruled when the allegations contained in said petition do not contravene the possibility of such a situation.

In the light of the foregoing decision by our Court of Appeals, this Court is constrained to the view that the legal principles so determined and pronounced by the appellate court are controlling and dispositive of all the issues raised by branch II of Defendants’ motion at this stage of the litigation in the case at bar. Therefore, branch II of Defendants’ motion herein is not well made and should be overruled.

For all of the reasons hereinabove set forth and discussed, this Court finds that branches 1(a), 1(b), Kc) and 1(d) of Defendants’ motion herein should be sustained; and that branches II(I) and IKII) of said motion should be overruled.

The Court further finds that Counsel for Defendants should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Plaintiff and Defendants and thereupon submit same to Counsel for Plaintiff and to this Court for approval within fifteen (15) days; and that Plaintiff should be granted leave to file an amended petition by, on or before July 1, 1954.


source: Caselaw Access Project

author: By McBRIDE, J.

license: Public Domain

text:
    CORNELL v. AUGAITIS et.
    Common Pleas Court, Montgomery County.
    No. 105827.
    Decided November 25, 1953.
    John W. Hardwick, Columbus, for appellant.
   OPINION

By McBRIDE, J.

This matter is before the court on the record and the appeal filed by the Administrator of the Bureau of Unemployment Compensation pursuant to former §1346-4 GC. The appellant states that the decision of the Referee and the Board of Review was in error in the following respects:

“1. In failing to find that claimant quit his work to accept full time employment pursuant to an actual bona fide offer of employment from another employer, within the provision of §1345-8e GC, when claimant terminated employment with Delco Products Division of General Motors Corporation and started working for the Patterson Distributing Company. ■
“2. In holding that the portion of §1345-8e GC reading ‘in the event that an individual quits his work to accept full time employment pursuant to an actual bona fide offer of employment from another employer and is paid wages by such employer equal to ten times his weekly benefit amount,’ means that the ‘employment’ therein he must accept means employment subject to the Unemployment Compensation Act, and the ‘employer’ therein means an employer subject to the Unemployment Act.
“3. In reversing the Administrator’s initial determination of claim dated March 5, 1952.
“4. In finding that claimant was not in employment while working for the Patterson Distributing Company, and that the Patterson Distributing Company was not an employer.”

Sec. 4141.30 R. C. (§1345-8e GC) provides:

“If an individual became unemployed under circumstances described in sub-section (1), (4), (8) or (11) of §1345-6c GC of the unemployment compensation act, then any wages paid to such individual during his base period by the employer, from whom such individual became unemployed under circumstances described therein, shall be excluded from the computation in determining total benefits payable * * *.”

Sec. 4141.29(C) R. C. (§1345-6c GC), provides in subsection (1) as follows:

“Notwithstanding the provisions of subsection (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:
“(1) quit his work without just cause or has been discharged for just cause in connection with his work. The provision of this subsection shall not apply to the separation from employment of a person for the purpose of entering the armed forces of the United States.”

The referee found that claimant quit work without just cause. His finding in that respect is as follows:

“The facts in this case indicate that on November 9, 1951, claimant quit his work at Delco Products. The only reason for his quitting was to work as a commission salesman. Apparently the claimant prefers to work as a salesman rather than as an inspector, although he has considerable experience as an inspector. It is difficult to find that claimant had any prospects of bettering himself by this change of work. In order to justify quitting one’s work, one must show that he acted reasonably under the circumstances. It does not seem reasonable for claimant to have quit his work at Delco without any notice in order to work at a job with little prospects of advancement. It is therefore concluded that on November 9th, 1951, claimant quit work without just cause.”

The failure to give notice of termination of employment may be significant in situations in which a claimant fails to accept work, however, the statute refers to the cause of the separation and not the method. Failure to give notice is a handicap in seeking re-employment but it is not a disqualification under the act.

In this case, a factory inspector voluntarily quit work to engage in the sale of a product entirely on commission basis. While selling he was master of his own time and efforts and was not engaged in an occupation subject to the unemployment act. He earned commissions equal to ten times his established weekly benefit. The sale and promotion of the product was unsuccessful and he discontinued this activity and applied for compensation.

All unemployed individuals do not receive benefits under the unemployment compensation act. It is equally true that a claimant with sufficient credits may have them erased by a disqualifying separation. When an individual in any protected system of employment separates from his employer, he removes himself from benefits inherent in the system. If he wishes to maintain earned or accumulated rights, his separation must be accomplished according to some condition expressly provided to protect his rights.

The unemployment system was enacted to protect the workman, the laborer and others dependent-upon the acceptance of their services by others in the customary relationship of employer and employee. The old term of master and servant is no longer as acceptable, but it covers the same situation. The purpose and intent of the legislature to protect such parties is plain and clear.

When an individual quits work to enter an activity for himself, he ceases to be an employee. He becomes a principal working for himself, when and as he pleases. His right to do so is inherent in our system of government, but in exercising that right, such individual may not, at least under the present statutes, rely upon benefits of a public fund set aside for the protected group of which he is no longer a member. It is immaterial in this situation whether the individual works for himself or undertakes to sell exclusively on commission with no obligation to devote any number of hours to this activity.

The only comment we have located on this subject appears in an article entitled, “Disqualification: Discharge for Misconduct and Voluntary Quit,” by Edwin R. Teple, appearing in 10 Ohio State Law Journal 202:

“By way of contrast, quitting one job to accept another, to engage in self-employment, or merely to get a change of scenery, normally is considered neither to amount to good cause connected with claimant’s work nor to good personal cause. When the new job fails to materialize or the new venture falls through and the individual finds himself without a job and tries to claim benefits, he is faced with disqualification. Such changes apparently are considered to be at the claimant’s own risk.” See cases cited.

Accordingly it is the conclusion of this court that a wage earner who voluntarily quits his employment and accepts a sales job with compensation exclusively on a commission basis and with no obligation to devote full time to such new activity is disqualified from earned benefits under §4141.29 (C) R. C. (§1345-6c GC) of the unemployment compensation act.

The remaining questions set forth in the notice of appeal relate to the last sentence of §4141.30 (E) R. C. (§1345-8e GC) amended in 1951 which provides,

“In the event that an individual quits his work to accept full-time employment pursuant to an actual bona fide offer of employment from another employer and is paid wages by such employer equal to ten times his weekly benefit amount, no disqualification shall apply under this section as a result of such quitting.”

The terms used are otherwise defined in the act.

The revised code requires the construction set forth “unless the context otherwise requires,” which at first appears to be a modification of the former expression, “except where the context clearly shows otherwise.” Without delving into the origin of this distinction, the intent of the legislature appears to be the same.

The term “employment” is defined as service performed for wages. Sec. 4141.01(B) R. C. (§1345-lc GC). The term employment expressly excludes service performed by one on a commission basis, and who in the performance of the work is master of his own time and efforts, and whose remuneration is wholly dependent on the amount of effort he chooses to expend. Sec. 4141.01(B) (2) (g) R. C. (Sec. 1345-lcD7 GC). Wages are defined as all compensation, including commissions and bonuses and the cash value of any medium other than cash, paid to an employee with respect to his employment. Sec. 4141.01(G) and (H) R. C. (Sec. 1345-le and f GC.)

The referee discussed the problem in his decision:

“There is some question whether claimant met the requirements of the first two elements. However, if we concluded that claimant did meet those two requirements we still have the question of whether claimant was offered employment by another employer. In deciding this latter point it must be determined whether the word ‘employment’ and ‘employer' are to be defined as they are in the Unemployment Compensation Act, or in a more general sense, i. e., does ‘employment’ mean employment subject to the Unemployment Compensation ACt, and does ‘employer’ mean employer subject to the Unemployment Compensation Act? Sec. 1345-1 GC, reads in part as follows:
“ ‘The following terms in the unemployment compensation act shall be construed as follows (except where the context. clearly shows otherwise): * * (Emphasis added.)
“The law then goes on to define ‘employer’ and ‘employment.’ Since the context of §1345-8e GC, does not clearly show otherwise, it must be concluded that employment and employer are to be construed as they are defined in the Unemployment Compensation Act. If another definition was used in this case, it would result in claimant having failed to remove the suspension of benefit rights as pointed out in Issue, by having base period wages from the same employer included in the computation of total benefits payable Such a result would seem to be contrary to the intent expressed by the Legislature. The facts of this case clearly show that claimant was not in employment while working for the Patterson Distributing Company, and that the Patterson Distributing Company was not an employer within the meaning of the Unemployment Compensation Act.
“It is therefore concluded that claimant did not quit his work to accept fulltime employment pursuant to an actual bona fide offer of employment from another employer, and all base period wages paid claimant by Delco Products Division, GMC, must be excluded from the computation of his total benefits payable.”

Salesmen employed on a commission basis are wholly and completely excepted from the status of employment for the purposes of coverage by the act. American Life & Accident Insurance Co. v. Jones, Adm’r, 152 Oh St 287, 89 N. E. 2d. 301, 14 A. L. R. 2d 815.

Even under a general as well as liberal interpretation, the words used in §4141.30 (E) R. C. (§1345-8e GC) require an obligation to devote full, rather than part, time work for another. And they require a relationship between one individual and another of employer and employee.

Accordingly it is the opinion of the court that the last sentence of §4141.30 R. C. (§1345-8e GO does not remove the disqualification resulting from a voluntary quitting without just cause where the employee- accepts a sales job with compensation exclusively on a commission basis and with no obligation to devote full time to such new activity.

Nothing in the context of the last sentence of §4141.30 R. C. (§1345-8e GC) requires a construction of the term “fulltime employment” other than eliminating employment exclusively on a commission basis where there is no obligation to devote full time to the occupation. Whether or not the terms “employment” alone or “employer” are used in the meaning restricted by §4141.01 R. C. (§1345-1 GC) is not decided.

The appeal of the Administrator is accordingly dismissed.


author: Per CURIAM.

text:
    MESMER, Plaintiff-Appellant, v. JOHNSON, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3620.
    Decided January 5, 1954.

      Edward R. Roberts, L. M. Cailor, Youngstown, for plaintiff-appellant.
    Carlyle & Carlyle, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

In this appeal by plaintiff, Ted Mesmer, on questions of law from the judgment of the Common Pleas Court in favor of the defendant, Paul W. Johnson, the Court of Appeals has carefully examined the entire record and finds that the parties on the 31st day of December, 1951, entered into the following compromise agreement:—

“Dec 31. 1951
“Whereas P. W. Johnson, the owner-seller, and Ted Mesmer, the buyer, have prior hereto arrived at the sale and purchase of a 93 M Marion Diesel Shovel, Serial No. 8493. for the purchase price of $37,000, f. o. b. McWhorter, W. Va.; and whereas, the same has been shipped and delivered to the buyer at N. Lima, Ohio.; and whereas the parties eame into dispute concerning the condition of the shovel in relation to alleged warranties made concerning the same and the alleged breach of the said warranties; and whereas the owner-seller and the buyer are desirous of reaching an amicable adjustment of the same;
“Now, Therefore, be it witnessed that in consideration of the mutual release of each other from further dispute and as a compromise and settlement and full release of any and all actions or causes of actions of any sort arising out of the sale and purchase of the above described shovel, the parties agree as follows:
“1. The seller acknowledges the receipt of three thousand dollars in hand this date paid him as the balance of the down payment due him.
“2. The seller acknowledges the receipt of the total purchase price of the following listed parts, f. o. b. Marion Power Shovel Co., Marion, Ohio, present price list, this date, said purchase price hereby being applied to the balance due on the shovel, which as of this date, is $31,000, thirty-one thous- and dollars;
Quantity
“l. Item 51 91F87A 1
“2. Item 74 10F176 2
“3. Item 9 144B68 Full Bush 1
“5. Item 207 % x 1 Brass Dowel 2
“6. $25.00 allowed by seller to weld present high gantry.
“7. One (1) complete set of swing and propeller friction blocks.
“8. Group 30365 Item 1 1%" pitch silent chain, two guide type 178 pitches. One complete chain.
“9. One power take off pinion
“10. Group 123-6-57 Quantity 2 (spin gear)
“11. Item 6-391-C-199 Spin gear “12. Item 7-351-C-4 Internal gears.
“13. Group 119-6-13 Item 2 CU C27 Yoke for hook roller Quantity 1
“14. Item 23-926 P849 pin in yoke for hook roller — Quantity 1
“15. Item 18-81-F-88 Hook roller Quantity 6
“16. Group 252-6-12 Item 12-147-B-211 Full bush in Item 2, Quantity 1
“17. Item 13-148-B-115 Full bush in Item 3, Quantity — 1 “18. Four (4) bushings for the foot pins in upper frames. “19. Quantity 2 — Swing propel air bladders.
“The buyer agrees that he shall immediately upon receiving the bill of sale for said machine deliver the note and mortgage in the amount of $31,000 minus the purchase price of the above listed parts to the seller and further agrees to make the first payment on said note on March 1, 1952.
“The parties agree that the note and mortgage shall be modified accordingly as to date and amount due.
“It is agreed that the Marion Power Shovel Co. invoice as submitted for the above listed parts shall be determinative of the amount the seller shall send to the buyer and credit the note accordingly.
Witnesseth:
John S. Ingram P. W. Johnson
Owner-Seller
Edward Roberts Ted Mesmer
Buyer.”

Plaintiff’s first cause of action in the common pleas court is to set aside that compromise agreement on the ground of fraud, and by further causes of action prayed for damages growing out of the sale and purchase of a certain shovel described in that agreement.

Such agreement is not void for “fraud in the factum,” but only voidable. Therefore, before plaintiff may recover damages it was incumbent upon him to produce clear and convincing evidence of fraud inducing him to execute such compromise agreement. It may be said that the agreement is enforceable until it has been set aside on the ground of fraud in the inducement.

While more comprehensive definitions may be found for the phrase “fraud in the factum” it is here sufficient to say that fraud in the factum applies to an agreement inhibited by law —one which the law says shall not be entered into on the ground of public policy. Surely there is nothing in the law which forbids parties to enter into an agreement compromising their differences growing out of the sale and purchase of the described shovel. Indeed, it must be said that the law favors such agreement if entered into fairly and without fraud inducing its execution.

When this action was called for trial in the common pleas court that court took the position that the action could not proceed as one for damages until plaintiff would proceed upon his first cause of action and obtain a decree of the chancellor setting aside the agreement. Whereupon the plaintiff sought to strike such first cause of action from the petition. This the trial court refused to permit and appellant urges error in that respect. In this we find no error prejudicial to appellant, since no evidence was admissible on the issue of damages before that agreement (admitted to have been entered into by plaintiff and apparently drawn by his own attorney. who signed as a witness), had been found unenforceable on the ground of fraud in the inducement, purely a chancery issue. See Meyer v. Meyer, 153 Oh St 408. From our careful examination of the record in this case we find that the plaintiff failed to sustain the burden upon him as to such chancery issue, and that being the decision of the common pleas court we find no error prejudicial to plaintiff wherein that court found in favor of the defendant.

The judgment must, therefore, be and the same is affirmed.

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


author: By SIMONS, CJ.

text:
    ERIE R. CO. v. LADE.
    United States Court of Appeals Sixth Circuit.
    No. 11801.
    Decided February 10, 1954.

      Robert M. Weh, Cleveland (Robert M. Weh, Burgess, Fulton & Fullmer, Cleveland, on the brief), for appellant.
    Craig Spangenberg, Cleveland (Craig Spangenberg, Harrisón, Spangenberg & Hull, Cleveland, on the brief), for appellee.
    Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

By SIMONS, CJ.

The railroad assails a judgment against it for injuries suffered by Lade in a railroad crossing accident upon the private property of the Standard Oil Company at Cleveland, Ohio, in which Lade, while driving a tractor and trailer for the Oil Company, was injured. The case was submitted to a jury after the denial of the railroad’s motion for directed verdict based upon the contention that Lade was guilty of contributory negligence, as a matter of law. A verdict for substantial damages followed. Neither in brief nor oral argument does the railroad deny its own negligence in the operation of its engine. It plants its case upon Lade’s negligence which ■ it asserts was a contributing proximate cause of the accident and upon certain alleged procedural errors.

Upon the property, where the collision occurred, the Standard Oil Company maintains a large warehouse some 86 feet wide and 150 feet deep. In the northerly face of the ouilding are three loading doors and along its easterly elevation is a railroad sidetrack close to and parallel with it. Sixty feet to the north of the warehouse is a brick driveway running approximately east and west and crossing the spur track about 60 feet from the northeast corner of the building. Lade's vehicle, consisting of a tractor and trailervan, had approached the warehouse on the roadway from the west and after crossing the spur-track had backed to the center door of its north front to pick up a load. While Lade was engaged in the loading operation, appellant backed a train of two tank cars propelled by a diesel engine along the east front of the warehouse to spot the tank cars at one of the loading platforms on that side. From where Lade was engaged, he could not see the train because it was concealed by the corner of the warehouse. There is dispute as to the distance the train had proceeded south of the corner of the building, the appellant contending that the train was standing 25 feet south of its edge while the appellee contended the distance was 80 feet. After picking up six drums of oil, Lade set forth to move his vehicle to another building of the Oil Company. To accomplish his mission he was obliged to travel in a northerly direction approximately 60 feet to the road, then to swing right thereon and drive east approximately 40 feet to the crossing. When he was within six or seven feet from the track, he reduced his speed from about 4 miles per hour to 2 miles per hour, looked to his left and right, saw nothing, and proceeded over the track. When almost two-thirds of the way across with his lengthy vehicle, it was struck by the diesel, now relieved of its tank cars, at about one-third of the length of the van from the rear. There is dispute in the evidence as to the speed of the diesel immediately preceding the collision, the appellee contending that the engine was moving at about 20 miles per hour and the appellant contending that it was moving but 4 miles an hour. There is also dispute as to whether the diesel and the truck started at the same time, as the appellant contended, or whether the diesel was at rest when the appellee made his observations in approaching the track. No employee of the railroad was protecting the crossing although there was evidence that it was usually so protected. The diesel was equipped with both bell and horn. There is evidence that neither signal was used, the railroad conceding that it was not customary to use the horn but insisting that the bell was being rung during the entire movement of the diesel.

It is the contention of the railroad that if Lade had looked to the right at a point six or seven feet from the crossing he would have been able to see the diesel approaching and traveling at a speed of two miles an hour, in low gear, he could have stopped his vehicle in time to avoid the accident and, failing to do so, he was negligent with his negligence, contributing proximately to the accident. In this contention, it relies upon Ohio law wherein it is held that there is a duty upon a traveler upon the highway, when approaching a steam railroad crossing, to look and listen for the approach of trains at a place and in a manner that will make the looking and listening effective, Detroit, T. & I. R. Co. v. Rohrs, 114 Oh St 493, 503, 151 N. E. 714. The cases wherein the rule has been stated and applied are carefully analyzed in the exhaustive opinion of Judge Miller of this court in Detroit, T. & I. R. Co. v. Yeley, 165 F. 2d 375. Appellant’s contention, however, is based upon the assumption that the diesel was approaching the crossing when Lade’s observations owere made. There is, however, much evidence from which a reasonable inference could have been drawn that this was not so.

In the application of legal principles, long experience has demonstrated that there are few absolutes and that every case must be decided upon its peculiar facts. The law in Ohio is not otherwise. While an automobile driver is under a duoy to look and listen before he crosses a railroad track of whose existence he is aware, it is not his absolute and unqualified duty to stop before he goes on the track, unless his looking and listening discloses the approach of a moving train. Robinson v. Pennsylvania R. Co., 117 Oh St 43, 58, 158 N. E. 83. It is not clear from the evidence that the diesel had started to move at the time Lade had made his observations. One witness testified that the diesel “shot out” from the side of the building as the truck went on the crossing. The evidence of this witness is not discredited by the fact that he didn’t know how fast the engine was going. The following important considerations must be taken into account. The diesel had been stationary within the afternoon shadows of the warehouse at a point, according to the railroad’s evidence, less than 100 feet from the crossing. The track had been sanded when it had come in pushing the tank cars so as to get traction for the operation. It was again sanded going out, when the engineer received warning of danger. Nevertheless, Lade’s trailer of approximately 8000 lbs. unloaded weight and containing a load of 18,000 to 20,000 pounds and connected to a tractor weighing approximately 5 tons, with the brakes of the engine set, was swung around by the collision and the tractor upset until it rested on its side, with the front of the stopped diesel 16 to 18 feet across the roadway. Upon an assumption of these facts, two experts testified that the diesel must have been going 20 miles an hour. Add the circumstance that the collision took place not upon a through right-of-way of the railroad where trains of high speed could reasonably be expected but on a short spur track within the private property of the Oil Company where truck deliveries were daily being made. Add also evidence that in a test run of the diesel it was demonstrated that it could accelerate up to 20 miles an hour in approximately 52 feet from a standing start. Apply the principle that there is no actionable liability for negligence unless injury resulting therefrom could reasonably have been foreseen in the light of attending circumstances, discussed by us in Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F. 2d 193, and we come to the conclusion that the issue of negligence on the part of Lade was one properly submitted to the jury. Reasonable men could well differ as to whether Lade failed in the exercise of due care in crossing the track under the circumstances disclosed, when under familiar rules they must be considered in the light most favorable to the appellee. We noted, not so long ago, that the U. S. Supreme Court, in a series of cases, has drawn a sharp line between the constitutional function of a jury to pass upon issues of fact and the function of the court to determine whether there is substantial evidence to submit such issues to the jury. Pennsylvania R. Co. v. Goldie, 6 Cir., 182 F. 2d 9, 11.

Among the procedural errors alleged, the appellant contends that the court should have excluded the stenographic record of Lade’s statement to the defendant’s claim agent, after the railroad had called the court reporter as a witness to establish that Lade had made a contradictory statement. Upon the plaintiff’s motion, the entire statement was admitted and the defendant claims it was thereby prejudiced, relying upon Prole v. City of Cleveland, 60 Abs 515, 102 N. E. 2d 253 We perceive no error in the admission of this evidence. Rule 43(a), Federal Rules of Civil Procedure, 28 U. S. C., gives the court much latitude in determining the admissibility of evidence and doubts must be resolved in favor of admissibility. The fact that state courts would exclude the testimony does not necessarily require its exclusion by a United States District Court within such state. Garford Trucking Corporation v. Mann, 1 Cir., 163 F. 2d 71; Boerner v. United States, 2 Cir., 117 F. 2d 387; Holtzoff Federal Practice, p. 678, §962.

A final question of procedure relates to the failure of the court to give defendant’s written request in terms of the Ohio rule as to looking and listening where such looking and listening would be effective. We have examined with care the instructions of the court to the jury. While not given in the specific language of the written request, we think the court fairly instructed the jury upon the issue of contributory negligence; that, even if such instruction was in any sense inadequate, such inadequecy was waived by the stipulation entered into between the parties.

Judgment affirmed.


author: By SKEEL, J.:

text:
    MARSHMAN, Admr. of the Estate of Angus Antcliff, deceased, Plaintiff-Appellant, v. STANLEY et, Defendants-Appellees, SCOTT et, Defendants-Appellants,
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22331.
    Decided August 11, 1952.

      Donald M. Marshman, Louis J. Doria, Cleveland, for plaintiff-appellant.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for defendants-appellees.
    William M. Byrnes, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J.:

This action comes to this court by reason of two appeals on questions of law from judgments entered in the Common Pleas Court of Cuyahoga County. The action is one for the alleged wrongful death of Angus Antcliff. The plaintiff as administrator of the estate of Angus Antcliff filed this action against Frances E. Stanley, Rhoda Stanley Latta, Laura Stanley Snell. Logan Scott and Margaret Nease alleging the following facts as the basis of his action.

• The defendants, Frances E. Stanley, Rhoda Stanley Latta and Laura Stanley Snell are the owners in fee of property located at the northeast corner of East 84th Street and Euclid Avenue. On the front of the lot is the Venice Apartments consisting of stores fronting on Euclid Avenue with living apartments on the floors above. In the rear of the apartment building is the old John Stanley residence now used as a rooming house and in the rear of the lot there is a garage which was rented for commercial purposes. The Stanley heirs employed Steller and Stofer, Inc., to manage the property for them. Logan Scott rented the old residence for rooming house purposes February 1, 1945, having come into possession of such rooming house business by assignment from a former lessee and owner April 20, 1944. While in possession of such rooming house, Logan Scott tapped a gas line in the basement, installed a shut-off valve at the point where the line was tapped and then ran a gas pipe from there through the first floor into what was known as Room 4 and up and through the ceiling and under the floor of room 10 which is located over room 4 on the second floor of the building. The line was to be used for the purpose of installing a stove in room 10, but the work was not completed and it is the claim of the plaintiff that he failed to cap said gas pipe which ended above the ceiling of room 4 and under the floor of room 10. This claim is disputed by Scott. Logan Scott sold his rooming house business to Margaret Nease and Mabel Wittrock about the first of March, 1946. His then lease which ran from February 1, 1946 to January 31, 1947 was cancelled as of April 1, 1946 and a new lease was given by the agents of the owners to Margaret Nease and Mabel Wittrock for one year beginning April 1, 1946. Shortly thereafter, Margaret Nease received an assignment of the interest of Mabel Wittrock. Some time during September, 1946, Margaret Nease rented room 10 to Angus and Florence Antcliff, husband and wife. About 11:00 A. M of January 9. 1947, Angus Antcliff attempted to light his pipe when a violent gas explosion took place as a result of which both Mr. and Mrs. Antcliff came to their death.

Upon trial the jury returned a verdict of $25,000.00 against all defendants. The defendants, Frances E. Stanley. Rhoda Stanley Latta and Laura Stanley Snell filed a motion non obstante veredicto which motion was granted and judgment entered for these defendants. It is from this entry that plaintiff’s appeal is taken. The remaining defendants have appealed from the judgment entered against them. We will consider the plaintiff’s appeal first. The assignment of error is as follows:

“1. The court erred in sustaining the motion of the defendants, Frances E. Stanley, Rhoda Stanley Latta and Laura Stanley Snell filed June 4, 1951 for judgment notwithstanding the verdict returned against said defendants by the jury on May 29, 1951.”

The evidence discloses that the defendant, Scott, became the lessee of the rooming house at a stated monthly rental which lease required him to make all inside repairs. During the time he owned the 'rooming house business he was in complete and exclusive possession of the building. This defendant admitted putting in the gas pipe from the gas line in the basement to a point under the floor of room 10 without getting a permit from the building department of the city of Cleveland. He installed a shut-off valve in the basement which, when the work was concluded, was turned off. He claims that the end of the pipe which did not go above the floor in room 10, was capped. The East Ohio Gas Company employees, who were called to the building to turn off the gas during the fire, found the shut-off valve in the basement had been opened and further found that there was no cap or plug on the end of the pipe under the floor of room 10. The firemen also testified that said pipe was uncapped upon their inspection after the Are.

Sec. 1428 of the Ordinances of the city of Cleveland (being a part of the building code of the city) provides in part:

“* * * After the piping is run all openings shall be closed with iron caps * * * and all unused outlets shall be kept capped * *

There is no evidence in the record nor does the plaintiff claim that the Stanley heirs or their agent, Steller & Stofer. Inc., or any of its officers or employees had any knowledge of the installation, of the gas pipe by Scott or of the condition in which it is claimed the work was done. Nor does the record even suggest that Margaret Nease knew about the gas pipe installation.

The plaintiff’s theory of the liability of the defendants. Prances E. Stanley, Rhoda Stanley Latta and Laura Stanley Snell, is that after the gas pipe was installed in such a negligent manner as to create a dangerous and unsafe condition, they, the Stanley heirs, regained the possession of the building by virtue of the fact that they cancelled the Scott lease and leased the rooming house to Margaret Nease and Mabel Wittrock and that as stated in plaintiff-appellant’s brief:

,,* * * kafl as much time as they needed to take, and an ample authority, to inspect their premises and discover this fire-trap and remove it so this occupied rooming-house would be fit for habitation by human beings before they again rented it occupied to a new proprietor. Plaintiff contends this was a duty they owed the occupants and prospective roomers when this rooming-house returned to their possession and control, particularly since they themselves specified that the property could be used “for rooming-house purposes only, and for no other purpose,” and that this breach of duty on their part was negligence which concurred and united with the similar negligence of the defendants, Logan Scott and Margaret Nease, to cause the wrongful death of Angus Antcliff.”

This theory of liability growing out of the relationship of landlord and tenant cannot be supported. The plaintiff’s decedent was upon the premises as the tenant of Margaret Nease who, during the continuance of such contractual relationship was in the exclusive possession of the building as lessee and tenant of the Stanley heirs. There was no legal relation whatever between the Stanley heirs and Antcliff.

The general rule defining the duty of a landlord for injuries sustained by a tenant or one upon the premises by permission or under the authority of the tenant because of latent defects or dangers on the property where the landlord is not guilty of concealment or fraud is stated in 110 A. L. R. 756 N:

“The cases are practically agreed that where the right of possession and enjoyment of the leased premises passes to the lessee, in the absence of concealment or fraud by the landlord as to some defect in the premises, known to him and unknown to the tenant, the rule of caveat emptor applies, and the tenant takes the premises in whatever condition they may be in, thus assuming all risk of personal injury from defects therein; and this rule applies to the wife of the tenant and other members of his family; also to guests of the tenant; to a member of a lodge which is a tenant; to a customer or patron of a tenant; and to a servant of a tenant.”

In restatement of the law of Torts the comment following paragraph 358, page 969 is as follows:

“Extent of lessor’s duty — inspection. In order that a lessor of land may be subject to liability under the rule stated in this Section he must actually know of the condition and realize that it involves a risk of harm to those who may use the land in ignorance of it. The lessor is under no duty to either his lessee or those who may be expected to enter the land in his right, to inspect the land in order to discover its actual condition; nor is he under any duty to warn the lessee of a condition which he has reason to believe that the lessee will discover or of the extent of the risk involved in an obvious condition unless he should realize that the lessee is unlikely to appreciate it.”

The courts of Ohio without deviation have followed the rule as thus stated as between landlord and tenant or as between the landlord and sub-tenants or between a tenant and those holding under his authority.

Burdick v. Cheadle, et al., 26 Oh St 393; Shindelbeck v. Moon, 32 Oh St 264; Shinkle, etc. v. Birney, et al, 68 Oh St 328, 67 N. E. 715; Marqua v. Martin, 109 Oh St 56, 141 N. E. 654; Goodall v. Deters, 121 Oh St 432, 169 N. E. 443; Berkowitz v. Winston, 128 Oh St 611, 193 N. E. 343; Ripple v. Bank, 143 Oh St 614, 56 N. E. 2d 298, and concurring opinion by Judge Hart at Page 620; 52 C. J. S. page 12, Landlord & Tenant, 32 Am. Juris. 597, Sec. 723.

In the Burdick case, supra, at page 397, the court said:

“Nor can the plaintiff hold the lessor liable to him for the injuries sustained upon his contract of lease with the tenant in possession. In disposing of this question, we have regarded Mattison as standing in the shoes of the original lessees.
“The general rule of law undoubtedly is, that persons who claim damages on the account that they were invited into a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule. There is no implied engagement or promise, on the part of a lessor, that the leased premises are in a safe condition, or that they are fit for the use to which the lessee intends to put them. If they be unsafe or unfit, it is the duty of the tenant to make them safe, or to fit them for the intended use; and the landlord may reasonably expect that the tenant will do so. And if the landlord warrants their fitness, the covenant stands for the benefit of the lessee and not for the benefit of strangers to the contract. And so, if the lessor engages with the lessee, to keep the premises in repair, a breach of the engagement gives a right of action only to the lessee. But whatever may be the rights and duties respectively of landlord and tenant, as between themselves, the latter can not, by the terms of the lease, be discharged from the duty to his guests, and in a greater degree to his customers, of caring for their safety. And while such persons may reasonably expect the exercise of care for their safety from the person who invites them, they have no right to expect like care from his landlord, with whom they are not in privity. Hence, it is well stated by Shearmann and Redfield, in their work on Negligence (Section 503), that the guests or customers of the tenant must seek redress for injuries, caused by defects in the premises, from the tenant and not from the landlord, even though the defects existed when the lease was made; for if they had not entered the premises at the request of the tenant, or under his license, they would not have suffered injury.”

The Supreme Court copied and approved the foregoing quotation in the Ripple case, supra. The latest decision of our Supreme Court in which the foregoing principle of law and the cases above cited were approved and affirmed, is Brown v. Cleveland Baseball Co., 158 Oh St 1.

We must conclude, therefore, there being no claim of fraud or concealment of the alleged dangerous condition of the gas pipe nor proof to support such claim as against the Stanley heirs, the court was correct in granting their motion for judgment notwithstanding the verdict.

The plaintiff’s claim of error in this respect is therefore overruled and the judgment non obstante veredicto entered for the Stanley heirs affirmed.

Coming now to the appeal of the defendants, Margaret Nease and Logan Scott.

Four grounds of error are set forth:

“1. Misconduct of a juror
“2. Verdict is excessive
“3. On failing to rule on liability of Stanley heirs at the conclusion of plaintiff’s case
“4. Verdict not supported by the evidence or the law.”

We will first give consideration to the fourth claim of error as to the defendant, Nease. By the undisputed evidence, she became the proprietor of the rooming house by purchase from Scott about the 15th of March, 1946. She was put into full and complete possession of the rooming house and the rooming house business. She was given a lease by the agents of the Stanley heirs for one year as of April 1, 1946. At the time she took possession, she had no knowledge of the gas pipe installed for room 10 by Scott, nor did she at any time prior to the gas explosion know of the condition in which the pipe had been left. Her liability under the undisputed facts is no different than that of the Stanley heirs. There is no evidence that she was guilty of fraud or concealment of the danger which caused the death of Antcliff. The judgment against this defendant is therefore reversed and final judgment entered in her favor.

The claim of liability of the plaintiff against the defendant, Scott, is not founded upon the relationship of landlord and tenant. Here the plaintiff’s case is based upon negligence. The negligent act alleged was the failure to cap the end of an unused gas line installed by said defendant in violation of the building code of the city of Cleveland. It is claimed that the failure to cap said gas line was the direct and proximate cause of the death of Angus Antcliff. There is abundant evidence in the record to support this claim. The defendant’s claim that the verdict is not sustained by sufficient evidence must be overruled.

The next claim of error of the defendant, Scott, is based on the alleged misconduct of a juror. On the last day of the trial one of the jurors reported late at the morning session of the court. She was interrogated by the judge in chambers in the absence of counsel and a record made of what was said. She explained the reason for being late as follows:

“Court: Why were you late?
“Juror: I just felt I had to know one little thing, whether it could happen in a normal case, and so I talked by phone with a plumber that I had known and asked him, Mr. Bunowitz. I simply asked the question whether a cap could blow off if it was on and he said, No. I thought in my mind, was it possible that could be on and the force of the explosion could blow it off? He said ‘No, that couldn’t possibly be true.’ ”

There can be no question but that the juror’s conduct constituted error, but under the undisputed facts in this case we hold that such error was not prejudicial to this defendant. The court in overruling the separate motions of the defendants to declare a mistrial entered by each when they were informed of the juror’s conduct and given a transcript of what took place in chambers did not commit an abuse of discretion.

We come now to the remaining questions of error which nave to do with the amount of the verdict. It is first claimed that the court should have granted the motion of the Stanley heirs for judgment at the end of the plaintiff’s case and that failure to do so influenced the jury to return a substantial verdict based on the financial standing of the Stanley heirs. No complaint is registered against the court’s charge on the subject of damages and we do not believe the defendant Scott’s rights were in any way prejudiced by holding the Stanley heirs in until after judgment when a motion for judgment non obstante veredicto was granted.

The evidence as to the state of health of the deceased, his relationship with his family and the amount of his income are in the record. The deceased was born in August, 1920 and was 26 years old at the time of his death. He was married, but his wife died a few hours after he did, from injuries received in the same fire. The father of Angus Antcliff was seventy^ years old on the date of the trial and was in poor health. He had retired at the age of 65 as a civil service employee of the state of Michigan and was receiving a pension of a little over $3.00 per day. The deceased had two sisters and four brothers, two of whom had not been heard from for a number of years. The others are married and maintaining their separate establishments on moderate incomes. The deceased was employed as a machine helper at the time of his death at a rate of 82c per hour or about $32.50 per week. He was a man of good habits and of recognized ability. Aside from an army allotment to his father while he was in the service, there is no evidence that either he or any of his brothers contributed to their father’s support. Under all the foregoing facts, a judgment from pecuniary loss to the heirs of the deceased of $25,000.00 must be excessive. The court therefore grants a remittitur of $10,000.00 which, if accepted within 10 days from the date of this finding, the court will modify the judgment to $15,000.00 and as modified, the judgment will be affirmed. Otherwise the judgment against Scott will be reversed as excessive and a new trial ordered.

Exceptions. Order See Journal.

HURD, J, THOMPSON, J, concur.


author: By BLYTHIN, J.:

text:
    UNITED STATES CASUALTY CO., Applicant, v. LEAHY et, Interested Parties.
    Common Pleas Court, Cuyahoga County.
    No. 659356.
    Decided August 20, 1954.

      McConnell, Blackmore, Cory & Burke, Cleveland, for applicant.
    Payer, Bleiweiss & Crow, Cleveland, for James Leahy.
    Harry J. Dworkin, Cleveland, for The Better Realty Co.
   OPINION

By BLYTHIN, J.:

This cause is before the court on the motion of applicant for approval of proceedings had in securing answers to applicant’s propounded interrogatories and the filing thereof, and for a voiding of cross-examination of the witness in a proceeding to perpetuate the testimony of such witness under favor of §2319.32 to §2319.38, both inclusive, R. C.

• Applicant filed its petition herein stating, in substance, that it issued its policy of liability insurance to The Better Realty Company, a Corporation, agreeing to indemnify the assured against loss resulting to persons from negligent acts of the assured. One James Leahy fell from a window on the premises of assured and was injured. Applicant claims that the assured failed to notify it of the happening as and within the time required under the policy and that Leahy, twenty-three months after the happening, brought suit in this court against applicant’s assured and that, as a result thereof, a claim may later be filed against applicant for indemnity. Applicant by its petition herein seeks to perpetuate the testimony of one Edythe Ebie and has listed and notified said James Leahy and The Better Realty Company as interested parties.

Attached to the petition and made a part thereof were 30 interrogatories to be propounded to said Edythe Ebie. An order was entered herein allowing the examination, naming John J. Mehler, a Notary Public, as the person to officiate in the premises and fixing the time and place to propound the questions and to record the answers of said witness thereto. The two interested parties were duly notified of all such details, or waived such notice. Both of the interested parties were represented by counsel at the time and place of questioning.

At the close of the answering of the interrogatories, counsel for The Better Realty Company expressed his desire to cross-examine the witness. Applicant’s counsel objected to any cross-examination on the ground that oral cross-examination is not authorized in such cases and situations. Counsel nevertheless proceeded to cross-examine the witness and at the close of such cross-examination the applicant renewed its objection, having previously indicated its intention to move to strike both the questions and answers of such cross-examination in the event it later became necessary to use the recorded testimony of the witness. The questions put by counsel to the witness on cross-examination had not previously been presented, recorded or filed.

As already indicated, the motion now before the court is for approval of the taking and filing of the direct testimony of the witness, and also for an order of disapproval of the cross-examination.

THE LAW

The practice of perpetuating testimony is certainly not new; in fact, it is of ancient vintage.

Weeks’ Treatise on Depositions,

Sec. 11. P. 11. “Under the old chancery practice, original bills not praying for relief were of two kinds: 1st, Bills to perpetuate testimony and to examine witnesses de bene esse: and 2nd, * * *. In such cases recourse was had to a bill for perpetuating testimony; courts of equity having for centuries enjoyed the right of entertaining suits for the purpose of preserving evidence in perpetuum rei memoriam. * * * The jurisdiction which courts of equity exercise to perpetuate testimony has been thought to be open to great objections; first, it leads to a trial on written depositions, which is deemed m the courts of common law to be much less favorable to the cause of truth than the viva voce examination of witnesses. * * * and therefore there is no proper ground for deferring the proceedings to a future time, and thereby substitute written depositions for viva voce testimony.”

8 R C L No. 3. P. 1132.

“In equity there are two kinds of bills to preserve testimony; one is to examine witnesses in perpetuum rei memoriam, and the other is to examine witnesses de bene esse. The right to take the examination of witnesses before an officer authorized for that purpose, with the view of perpetuating their testimony, was fully recognized and established by the civil law many centuries ago, and is still recognized in the English chancery courts as a practice admissible, and, indeed, under certain circumstances, absolutely necessary for the protection and maintenance of the rights of parties. This practice is adopted in nearly, if not quite, every state in the Union.”

8 R C L No. 20. P. 1149.

“For the purpose of obtaining the testimony, interrogatories are framed by the complainant; a certified copy of these accompanies the commission when it is delivered to the officer who is to act as examiner. As a general rule, such interrogatories are accompanied with the cross questions propounded by the adversary as a preliminary, very often, of the right to introduce the answers in evidence.”

8 R C L No. 28. P. 1156.

“If the deposition is duly taken under a commission awarded for that purpose by special order of court, with interrogatories thereto annexed in proper form, together with cross-interrogatories filed on the part of the adverse party, * * *.”

The above are quoted because of their clear suggestion that where the interrogatory is the method of taking and recording the testimony of a witness the cross examination must also be by interrogatory.

It is clear also that the right to cross-examine has always existed alongside the right to examine if testimony of the person examined is to be used upon trial of an issue.

Dean Wigmore in his Treatise on Evidence.

Sec. 1367.

“For two centuries past, the policy of the Anglo-American system of Evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.”

Sec. 1383.

“The principle requiring notice and opportunity of cross-examination applies equally to depositions taken in view of future litigation, ‘in perpetuum memoriam’; and it is preserved in the statutes as well as enforced in the judicial rulings.”

Sec. 1392.

“When a deposition is taken on written interrogatories filed beforehand, and the witness in an answer to a direct interrogatory departs from the subject of the question, the cross-examiner may be virtually deprived of cross-examination, because by not anticipating this answer he will not have framed his cross-interrogatories to probe the witness on that subject. This objection is obviously applicable to written interrogatories only; but to that extent it has a just foundation:”

Daniell’s “Pleading and Practice of the High Court of Chancery.”

No. 5 — Ed. Page 890.

“We have seen before, that, previously to the examination of a witness, a notice in writing of the name and description of the witness is to be served upon the adverse solicitor. The object of this notice is, that in case the adverse party shall have occasion to cross-examine the witness, he may have an opportunity of doing so. The cross-interrogatories ought to be filed before the examination in chief is completed; and if they are so filed the party producing the witness is obliged to procure him to stay or return to be examined.”

16 Am. Jur. Sec. 38. Page 714.

“The general rule is that the adverse party must have reasonable notice of the taking of depositions so as to be afforded an opportunity to be present at the examination, or to file cross-interrogatories, and that the failure to give the required notice renders the depositions vulnerable to a motion to suppress.”

National Fertilizer Co. v. Holland. 107 Ala. 412.

“Depositions taken on interrogatories may be suppressed upon motion when no notice of the filing of the interrogatories and no opportunity to file cross-interrogatories has been given.”

The above are quoted because they are of value in filling what at first blush seems to be a vacuum in the statutory provisions for perpetuating testimony in Ohio. It would seem that under the common law the proceedings were confined to written interrogatories and written cross-interrogatories. The right of an interested party was to (1) notice, (2) the right to be present and, or, (3) to file cross-interrogatories. As has been well said by one author:

“The power to perpetuate testimony is incident to courts of common law, in this country as well as in England, but the manner in which it is to be exercised and enforced in the States is variously prescribed by statute.”

There is nothing in the statutory provisions of our State to indicate that they are a deviation from or in derogation of the common law. They are clearly expressive of it but, as already suggested, may not have spelled out all the rights in their minute details.

Sec. 2319.02 E. C., provides that testimony of witnesses may be taken:

(a) By affidavit;

(b) By deposition;

(c) By oral examination.

Depositions may be taken in a pending action at any time after service of summons. Sec. 2319.06 R. C. A party seeking to so take depositions needs no order of the court but proceeds under the methods and after notice prescribed by statute. Sec. 2319.15 — §2310.16 R. C. It is interesting to note that the code provisions do not mention cross-examination but no question could successfully be raised about the right to cross-examine the witnesses and such cross-examination is had at the time and in the same manner and form as the examination itself. That is a step in a proceeding between actual litigants.

May be, hope to be, or fear they may be, litigants may not take depositions as a movement among themselves, as actual litigants may do, but must do so under the special provisions of §2319.32 to §2319.37 R. C., both inclusive — Perpetuation of Testimony.

A deposition in such a situation can only be taken after a petition has been filed — §2319.33 R. C. — and an order made thereon by the court — §2319.34 R. C. It will be noted that the petition must set forth the subject matter, parties interested, etc., and shall:

“state the names of the witnesses to be examined, and interrogatories to be propounded to each; * * (Emphasis supplied.)

Notice must be given to the interested parties as prescribed by the court. Sec. 2319.34 R. C.

Sec. 2319.35 R. C. is as follows;

“When it satisfactorily appears to the court of common pleas that the parties interested cannot be personally notified, the court shall appoint a competent attorney to. examine the petition mentioned in §2319.33 R. C., and prepare and file cross-interrogatories to those contained therein Witnesses shall be examined upon the interrogatories of the applicant and on cross-interrogatories, where they are required to be prepared, and no other shall be propounded to them; nor shall any statement be received which is not responsible to some interrogatory. * * *”

The word “responsible” in the Revised Code should have been “responsive.” There may be three classes or groups involved in such a proceeding to perpetuate testimony; (1) the applicant, (2) notified parties and (3) parties who cannot be personally notified. It will be noted that §2319.35 R. C., above, would seem to have reference only to the protection of the rights of group (3) — parties who cannot be notified. If this be the fact, the provisions for perpetuation of testimony are perfectly silent on the rights of a personally notified party beyond his right to notice as prescribed by the court. Sec. 2319.34 R. C.

While it is an evil practice to read meaning into a law rather than to read meaning out of it, some rational implications must be indulged in. Notice implies the right to be present. It is thoróughly well settled that the right to produce the testimony of a witness implies the right of an adversary to cross-examine that witness.

Where, however, the form of taking and recording testimony is prescribed as to some parties to a special proceeding it can hardly be claimed that justice dictates that a more liberal form is permissible or to be presumed to the other parties to the same proceeding. If a notified party to a proceeding to perpetuate testimony may orally cross-examine the witnesses of the applicant such notified party has greater rights than has the applicant or the party who cannot be notified but is represented by counsel appointed by the court. The authorities uniformly hold that in proceedings to perpetuate testimony the answers of the applicant’s witnesses may not go beyond the scope of the specific questions propounded and that the interested parties may not cross-interrogate beyond meeting the limits called for by the interrogatories. These holdings are consistent with the theory that such proceedings have as their purpose an end that may never, materialize and are limited in their scope to that set by the applicant’s original interrogatories. Under our Revised Code it would seem clear that the proceedings must be limited, as to all parties and as to form, to interrogatories.

From what has been said it follows that the deposition in this cause, insofar as the interrogatories of the applicant and answers thereto are concerned, will be approved and ordered filed. The objections to the oral cross-examination will be sustained and the questions propounded and answers given thereto will be ordered stricken.

An order in accordance herewith may be drawn for entry on the journal, with exceptions to the parties adversely affected thereby.