author: By SKEEL, PJ.:

text:
    FRYMARK, Plaintiff-Appellee, v. BUCKEYE UNION CASUALTY COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24143.
    Decided December 19, 1957.
    Fred P. Soukup, for plaintiff-appellee.
    McConnell, Blackmore, Cory, Burke & Kundtz, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in place of HURD, J.)
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff upon trial to the court in the Municipal Court of Cleveland. The action is based on contract.

The plaintiff-appellee purchased a policy of indemnity insurance from the defendant which, in part, provided:

“The Buckeye Union Casualty Company (herein called the Company) agrees with the Insured * * * to pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law for damages, * * * because of bodily injury, * * * sustained by any person or persons, caused by accident and arising out of such of the hazards hereinafter defined

The policy of insurance also provided under the heading “Definition of Hazards:”

“The ownership, maintenance or use, * * * of the premises, and all operations during the policy period which are necessary or incidental to such purposes.

«* * *

“As respects such insurance as is afforded by the other terms of this policy, the Company shall:

“(A) serve the Insured by inspection of the hazards covered by this policy when and as deemed desirable by the Company and thereupon suggest such changes or improvements as may in the Company’s judgment operate to reduce the number or severity of accidents from such hazards:

“(B) defend in his name and behalf any suit against the Insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false, or fraudulent; but the Company shall have the right to make such investigation, negotiation and settlement of any claim or suit as may be deemed expedient by the Company; * * *”

The plaintiff was engaged in the tavern business. The policy of casualty insurance was purchased for the operation of such business. The plaintiff alleges that she was made a defendant in a suit for damages by one James Unger resulting from an alleged accident occurring to Unger while he was a patron in plaintiff’s tavern. The action against this plaintiff was filed in the Court of Common Pleas of Cuyahoga County, Ohio, by Unger, who alleged in his second amended petition that he came into this plaintiff’s tavern in an intoxicated condition; that he seated himself on a stool at the bar where this plaintiff continued to serve him additional intoxicating liquors, as a direct result of which he became completely incapacitated and lost all control over his faculties.

“Plaintiff says that as a direct and proximate result of defendant’s sale to him of additional intoxicating liquors, after he was already intoxicated and had lost control over his faculties, resulting therefrom, he was caused to fall from the stool upon which he was sitting, catching his right foot on the foot rest of the base of said stool, breaking his right leg and rendering him unconscious.”

The second amended petition of James Unger against this plaintiff then alleges that there was then in force in Ohio §6064-22 GC. (Sec. 4301.22 K. C.) prohibiting sales of liquor to intoxicated persons. Just what this section has to do with Unger’s claim is not stated in this pleading. The basis of the action, however, is the sale of intoxicating liquor to Unger .after Unger was, to the knowledge of this plaintiff, drunk, whereby he completely lost control of his faculties, by reason of which he fell, sustaining injury.

In the first petition and the first amended petition filed by Unger, it is alleged that the violation of the statute above referred to was a proximate cause of Unger’s fall and the right to recover was founded on that basis.

The plaintiff notified this defendant of the action filed against her by Unger, claiming this defendant was obligated, under its policy of insurance, to conduct her defense. The defendant refused such request on the ground that the action, instituted by Unger, did not come within the terms of its policy of insurance. Whereupon, this plaintiff employed counsel.

This plaintiff’s counsel filed a demurrer to each of Unger’s successive petitions. In each case such demurrer was sustained. After the ruling on the demurrer to the second amended petition (Unger not desiring to plead further), final judgment was entered against him. The plaintiff then appealed the final judgment entered against him to this court where the judgment for the defendant was sustained on the ground that the second amended petition of Unger did not state a cause of action.

This plaintiff expended $300 for her defense as counsel fees. No question is claimed but that the amount was a reasonable one under the circumstances.

The defendant’s assignment of error is as follows:

“1. The trial court erred in failing to grant defendant’s motion for judgment, for the reason that as a matter of law Unger’s injury as described in his petition was not ‘caused by accident’ within the meaning of the policy.”

The allegations of the plaintiff’s petition upon which the right of recovery of expenses is claimed by reason of the contract of insurance, after setting forth the provision of the policy relied upon (the provisions of which are admitted), and the action against her for which the defense money was expended, she sets forth the following allegations: “* * * by reason of injuries alleged to have been suffered by him (Unger) while seated on a stool in front of the bar in plaintiff’s tavern and which was at that time insured by the policy of this defendant” as the basis upon which she is entitled to recover in this action. The provisions of the policy depended upon are quoted above.

There being no allegation that an accident occurred as the basis of presenting a claim within the terms of the policy, the plaintiff failed to state a cause of action. Therefore, a recovery against the defendant cannot be had.

Aside from the failure of plaintiff to state a cause of action in her petition, the evidence, presented by uncontroverted statements of counsel, received as evidence by stipulations of fact and facts established by admissions in the pleadings, is not sufficient to establish a claim within the provisions of the policy. An accident is not even suggested by the evidence. The proof is that because of his complete stupefaction from drinking alcoholic beverages furnished by the plaintiff, Unger did not have the physical ability to stay on the stool. In fact, it would have been an accident, that is, an unexpected occurrence, if he had not fallen. In order to be entitled to legal services under the terms of the policy, the claim made against the insured must come within the protection of the policy, that is, within the definition of the hazards insured.

In the case of First National Bank of Akron v. The Ohio Casualty Insurance Co., 101 Oh Ap 37, 137 N. E. 2d 770, the court said in paragraphs 1, 3 and 4, of the syllabus:

“1. Under a policy of liability insurance in which the insurance company contracts to defend actions against its insured, the obligation to defend arises when there is filed a petition against the company’s insured which pleads an action within the coverage of the policy. The obligation to defend exists regardless of the insurance company’s ultimate liability to the insured.

“3. A demurrer interposed by a plaintiff to the answer of a defendant which pleads a complete defense to an action in tort does not constitute such an admission of fact by the plaintiff as to relieve a liability insurance company from defending the action, where the petition pleads facts against the insurance company’s insured sufficient to bring the action within the coverage of the policy.

“4. The refusal of an insurance company to defend an action against its insured, where the allegations of the petition fall within the coverage of its policy of liability insurance, renders such company liable for the reasonable costs and expenses of a defense to the suit through other sources.” (Emphasis added.)

Here the plaintiff was an employee of the lessee, operator of the Portage Hotel. She had received Workmen’s Compensation as such employee for the same injuries as were the basis for damages claimed in this action. The Bank held the legal title to the property on which the hotel was situated as trustee for the land trust certificate holders. The policy of casualty insurance, issued by the insurance company to the operating company, contained a rider extending the insurance to the bank as trustee for the certificate holders. The plaintiff in this action claimed that this defendant had been negligent in maintaining a passenger elevator in violation of statute which it was said made the lessor liable. There was no claim that the elevator was not in safe condition at the beginning of the lease. Upon demurrer, it was held that no action was stated against the Bank. This ruling was sustained by the Court of Appeals and the Supreme Court. It was clear, however, that the claim of the plaintiff, if legally sufficient, was one included within the coverage of the policy (an accidental injury sustained because of the alleged negligence of the Bank) and as indicated by the syllabus above quoted, the insurance company was, by its policy, required to defend the Bank against the action. This case now before us is clearly distinguishable on the facts from the First National Bank case, supra. In the case now before us an accidental injury is not pleaded.

We must conclude, therefore, that the judgment entered for the plaintiff was entered in an erroneous interpretation of the contract of indemnity insurance and is, therefore, reversed and final judgment entered for the defendant.

HORNBECK and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    STATE, ex rel. NAWSON, Petitioner, v. ECKLE, Respondent.
    Ohio Appeals, Second District, Madison County.
    No. 222.
    Decided May 8, 1957.
    Cecile J. Shapiro, Columbus, for petitioner.
    William Saxbe, Atty Geni., Louis H. Orkin, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By THE COURT:

Petitioner seeks release by habeas corpus from the London Prison Farm where he is a prisoner under commitment from a Cuyahoga County Common Pleas Court upon conviction of a violation of §3719.02 R. C., in that he unlawfully had in his possession and under his control a certain narcotic drug, to-wit: heroin, a derivative of opium. The sentence pronounced was that he “be imprisoned in the penitentiary for one year of this State and kept at hard labor.”

No briefs have been filed in this case, but as we recall the oral argument at the time of the hearing, it was urged that the sentence was so uncertain, whether upon a misdemeanor or a felony, as to require petitioner’s release.

We find nothing irregular in the sentence except that it is for a definite period of time, namely, one year.

The statute under which the petitioner was charged and convicted, §3719.02 R. C., makes it an offense to possess any narcotic drug. Sec. 3719.99 R. C., fixing the penalty provides that whoever violates §3719.01 to §3719.21, inclusive, R. C., shall be fined not more than $500.00 or imprisoned not more than five years, or both for a first offense; * * *.

Manifestly, the trial judge did not treat the conviction of petitioner as a misdemeanor because no fine was imposed. The sentence clearly indicates that petitioner was sentenced for a felony. Notwithstanding the definite sentence, it must be considered as general and not fixed or limited in its duration.

Sec. 5145.01 R. C., provides:

“If, through oversight or otherwise, a sentence to the penitentiary should be for a definite term, it shall not thereby become void, but such person shall be subject to the liabilities of such sections and receive the benefits thereof, as if he had been sentenced in the manner required by section.”

Petitioner is not unlawfully restrained of his liberty.

The writ will be denied.

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


author: By McNAMEE, District Judge.

text:
    AMERICAN RADIATOR & STANDARD SANITARY CORPORATION, Plaintiff, v. TITAN VALVE & MANUFACTURING COMPANY, Defendant.
    United States District Court N. D. Ohio, E. D.
    No. 30455.
    Decided July 12, 1956.
    Victor DeMarco, George H. Rudolph of Jones, Day, Cockley & Reavis, Cleveland, for plaintiff.
    Morris Berick, of Halle, Haber, Berick & McNulty, Cleveland, for defendant.
   OPINION

By McNAMEE, District Judge.

Plaintiff, American Radiator & Standard Sanitary Corporation, hereinafter called American, seeks indemnity from defendant, Titan Valve & Manufacturing Company, hereinafter referred to as Titan, in the amount of a judgment it was required to pay Raymond Fix, who was plaintiff in an action against American in the District Court of South Dakota, and for the necessary expenses incurred in the defense of the prior action. There were two trials of the case of American Radiator, etc. v. Fix. By stipulation of the parties, much of the testimony in the second trial of that case has been received in evidence here. In the caáe at bar a jury was waived and the issues submitted to the court. The essential facts as shown by the record are:

Raymond Fix sustained serious personal injuries as a result of an explosion in the basement of his home in Rock Rapids, Iowa, on the morning of November 9, 1950, which occurred as he was attempting to ignite the pilot light of a hot water heater manufactured by American. The evidence in the Fix case showed that the explosion and the resultant injuries to Fix were caused by the failure of the safety pilot or safety valve of the thermal unit attached to the heater to shut off the flow of gas to the main burner when the pilot was out. The thermal unit was manufactured by Titan at its factory in Cleveland, Ohio, and delivered to American at its plant in Buffalo, New York, where it was incorporated into the hot water heater as a component part thereof. When American was informed by Fix of his claim, it immediately notified Titan, and when Fix filed his action against American, the latter notified Titan of the pendency of the action and requested Titan to defend it. This Titan refused to do. Fix recovered a judgment against American in the sum of $30,000, and it is for this amount, plus its expenses incurred in the Fix litigation, or a total sum of $36,351.69, that American seeks reimbursement from Titan.

Fix’s judgment against American rests upon the negligence of the latter in failing to exercise reasonable care in inspecting the safety valve “to determine whether it was in safe operative condition.” While the negligence of American in the respect indicated is established by the verdict of the jury and the judgment entered thereon, it is the position of American in the case at bar that it has a right of recovery over against Titan upon the latter’s alleged breach of its implied warranty of fitness of the safety valve, and also upon the ground of Titan’s alleged primary or active negligence in manufacturing the safety pilot.

It may be helpful to an understanding of the decision reached herein to outline briefly the nature and function of the safety pilot on the thermal unit. Each thermal unit is designed to operate on liquified petroleum or bottled gas. Each unit has two thermostats, one of which is inserted in the hot water tank. This thermostat is adjustable and regulates the heat of the water. It also turns off the gas to the main burner whenever the water in the tank reaches the desired temperature. This thermostat of the heater in Fix’s residence was in good working order. At the lower end of the thermal unit is another thermostat known as the safety valve or safety pilot. This thermostat is designed automatically to shut off the flow of the gas to the main burner and the pilot when the pilot light is out and a thermal tube located immediately above it and which extends into the fire box, is cooled to 900 °F. or less. This lower thermostat is described by the Court of Appeals in American Radiator & Standard Sanitary Corp. v. Fix, 8 Cir., 200 F. (2d), 529, 532, In part as follows:

“At the lower end of the unit which controls the flow of gas to the burners is another thermostat or thermal tube which extends into the Are box and which, unless heated to a high temperature by the pilot flame, will, if properly adjusted, shut off all gas from both burners. In other words, this device is intended and should be adjusted to permit no gas to flow to either burner if the pilot flame is unlighted. Thus so long as the pilot flame is burning, the gas can flow to the main burner when heat is called for, but none can flow if the pilot flame is out unless the thermostat in the fire box is defective or out of adjustment. This thermostat and its component parts constitute the safety valve or safety pilot.”

As indicated, one end of the thermal tube of the safety pilot extends into the fire box. The other end of this tube extends into a sealed unit of intricate mechanism containing a magnet and its keeper. Inside the thermal tube is a small piece of quartz and a smaller metal tube. If the thermal tube or any of its component parts are defective, or if the tube is not properly calibrated, then the safety valve will not stop the flow of gas to the main burner when the pilot light is out.

Shortly after the explosion, the thermal unit of the hot water heater in the Fix residence was detached from the heater and delivered to Dr. Amidon, Professor of Mechanical Engineering at Iowa State College. He connected the unit with gas and conducted an operational test which showed that after the main burner and the pilot light were out, gas nevertheless continued to flow to the main burner. No attempt was made at that time to ascertain the cause of the failure of the safety valve to function. However, at a later time, in the presence of several experts, including a representative of Titan, Professor Amidon repeated his previous tests, with like results. He then disassembled the sealed portion of the thermostat of the safety valve, examined each of its parts, and the adjustment or calibration of the thermal tube. None of the parts was found to be defective; but it was ascertained that the thermal tube was out of adjustment or improperly calibrated to the extent of 2/1000 of an inch. It was this slight maladjustment of the thermal tube that prevented the safety pilot from performing its function. As the Court of Appeals said—

“The evidence showed that the thermal tube, after the explosion, was found to be in perfect condition, but slightly out of adjustment.” 200 F. (2d), 529, 536.

For a considerable period of time prior to the trial of the Fix case, American purchased all of the thermal units incorporated into its heaters from Titan. When a shipment of units arrived at American’s factory, the cartons in which these units were shipped were inspected visually for evidence of rough usage or rough handling during shipment. When such inspection disclosed damage to the cartons, a further inspection was made of the thermal units contained therein. American also “spot checked” a representative number of units in the undamaged cartons. Such units as were not returned to Titan as a result of the visual inspections were placed in American’s stock room. Thereafter, as the units were connected with the hot water heaters, American conducted operational tests to determine whether the pilot valves would automatically shut off the flow of gas to the burners when the pilot flame was out and the thermal tube cooled. These tests were made upon all thermal units connected with hot water heaters manufactured by American. Frequently it was disclosed by these tests that the safety valves would not work. Whenever this occurred it was the general practice of American to return the defective unit to Titan without making any further examination to ascertain the cause of the failure of the safety valve to function. On a few occasions in the early period of its purchases from Titan, when tests made by American revealed an unusually large number of defective safety valves, Mueller, Chief Inspector of American, examined several of the units more closely and discovered broken pieces of quartz in the thermal tubes of some of the valves. This did not account for or explain the causes of all the defects that were disclosed by the tests. With these exceptions, however, it was the custom of American simply to return for replacement units which its tests had demonstrated were defective. Almost daily throughout the period of dealings between the parties there were rejections of units that failed to pass American’s operational tests. At no time did the inspectors of American disassemble the sealed portion of the safety pilot to ascertain whether the thermal tube was properly adjusted. With each unit delivered to American, Titan forwarded tags with printed instructions thereon. It was intended that these tags would be affixed to the hot water heaters sold by American. This was done. At the top of the tag appeared this caption—

Titan B-l 14-22

Titan 100% Shut Off Safety Pilot

However, the name of Titan Valve & Manufacturing Company did not appear as the maker of the safety valve. Included in the instructions on the tags was the statement, “The pilot is properly adjusted and calibrated at the factory and no further adjustment is necessary.” After completing its tests American affixed its nameplate to the heaters and attached the instruction tags thereto. Mueller testified that American relied on Titan to properly adjust the safety pilot, but he also concurred in the views of the other experts that the defect in the safety valve on the Fix heater ought to have been disclosed by American’s operational tests. Titan, as manufacturer of the thermal units, adjusted the tubes of the safety pilots by means of a calibrating machine and subjected the units to operational tests before delivering them to American.

It was the contention of Fix in his case against American that the safety pilot in question was defective at the time it left the factory of American at Buffalo, New York. However, there was evidence tending to show that the safety pilot of the hot water heater was in good working order when it was in the basement of the Fix residence. The heater had been installed in Fix’s home in April, 1950 and was used by him until the time of the explosion on November 9, 1950. In October, 1950, one Byker lit the pilot for Fix, and from the testimony given by him as to its operative condition at that time there arose a permissible inference that the safety valve was then properly adjusted. Relying upon this testimony, American requested the court to give a special instruction to the jury that “if the jury found that at any time after the hot water heater was installed in the house occupied by Fix the safety pilot was working properly, then it has been conclusively established that the plaintiff has failed to prove that the safety pilot was inherently dangerous at the time it left the factory of the defendant, and plaintiff cannot recover in this action.” This request was refused, and the jury returned a verdict against American in the sum of $30,000. Upon appeal, the Eighth Circuit Court of Appeals reversed the judgment on the ground that the District Court committed error in refusing to give the requested charge. In this connection the appellate court said, inter alia:

“If it was in proper adjustment when Byker lit the pilot burner in October, as the jury reasonably might have found, that, as we have previously stated, demonstrated conclusively that it was properly adjusted then and must have been in proper adjustment when it left the factory.”

The second trial in the District Court was upon substantially the same evidence, the court gave the specially requested instructions to the jury, but again a verdict was returned in favor of the plaintiff in the identical amount of $30,000. In the second trial, special interrogatories also were submitted to the jury. These interrogatories and the answers thereto were:

“1. Was the safety valve, sometimes called a safety pilot, involved in this case defective so that it would not shut off when it was cooled at the time it reached the factory of the defendant at Buffalo, New York?

“Answer this interrogatory ‘Yes’ or ‘No.’

“Answer: Yes.

“2. In the event you answer question No. 1 ‘Yes,’ then answer this question:

“Did the same defect exist at the time it left the defendant’s factory?

“Answer this interrogatory ‘Yes’ or ‘No.’

“Answer: Yes.”

The special findings were incorporated in and made a part of the corrected judgment entered by the District Court. No appeal was taken in the second Fix case. There is no evidence tending to show that American had changed or done anything to cause a change in the adjustment or calibration of the thermal tube of the safety pilot while the unit was in its possession. In view of this and as a predicate for his judgment against American, it was necessary for Fix to prove, and, as shown by the record in this case, he did prove, that the safety pilot was out of adjustment when the thermal unit was delivered to American, as well as when it left the factory of American at Buffalo, New York.

The first issue to be determined is whether Titan is liable on its alleged implied warranty of fitness. Sec. 1315.16 R. C., provides in part:

“Subject to §§1315.01 to 1315.76, inclusive, R. C., and any law applicable or condition as to the quality of fitness for any particular purplicable thereto, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract to sell or a sale, except as follows:

“(A) When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he is the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.

* * * * *

“(C) If the buyer has examined the goods, there is no implied warranty as regards defects which such examination ought to have revealed.”

There is no evidence of any formal contract of sale between the parties and, except as shown by the statement of facts, there is no evidence of any representation or affirmation relating to the fitness of the safety valves for the use for which they were intended. After making the described visual tests of the thermal units upon receiving them at its factory, American placed the units in' its stock room and deferred its operational tests until the units were incorporated into the heaters. That this arrangement met with Titan’s approval is evidenced by its long-continued policy of unquestioning acceptance of the return of safety valves which American’s tests had shown to be defective. These tests were designed to discover any defects that would prevent the safety valve from working, and it is incontestable that a careful test by American of the safety valve on the heater used by Fix would have disclosed its unsafe and dangerous condition. It therefore appears beyond question that there was a defect of the safety valve which ought to have been revealed by the examination made by American.

American contends, however, that notwithstanding its tests it nevertheless relied on Titan to supply properly adjusted valves. As justification for such reliance it refers to the statement on the instruction tags that “The pilot valve is properly calibrated.” This argument is not persuasive. The tags were attached to the heaters after American had completed its tests, affixed its nameplate to the heaters, and assumed responsibility for the finished product. Titan had good reason to know that American tested each and every pilot and that the tags would not be affixed thereto until after the operational tests were completed. While the name “Titan” appeared on the tags, there was nothing to indicate that the Titan Valve & Manufacturing Company was the maker of the safety pilot. A purchaser of the heater would be fully justified in assuming that “Titan” was a trade name used by American, whose nameplate was on the heater and that the pilot was adjusted at American’s factory. While Titan prepared the instructions and forwarded them to American, the latter in effect adopted them as its own. The printed matter on the tags was designed to enlighten and instruct the ultimate user of the heater. The representations that the safety valve was properly calibrated and the admonition not to make any further adjustment were obviously intended for the benefit of those who were expected to use the units without further tests. Their purpose was to prevent any tampering with the adjustment by the purchasers of American’s heaters. As the manufacturer of the finished product, American knew that proper adjustment of the pilot valve was essential to its safe operation. It makes no disclaimer of knowledge that its tests, if carefully made, would disclose any defect, including faulty calibration, that would prevent the safety pilot from working. As the Court of Appeals said:

“* * * The evidence shows that if a safety pilot is improperly adjusted, so that gas can flow to the burners when the pilot flame is out, that fact is easily discoverable by simple tests.” It is a fair inference, therefore, that it was in reliance upon its own tests that American passed on to its customers the information contained on the printed tags that the safety pilot was properly calibrated at the factory. It is true that American did not open the sealed unit of the safety valve to discover whether it was properly adjusted. However, there was no need for such an examination. As has been shown, a maladjusted pilot was a defect that American’s examination ought to have revealed, and this fact is decisive against its claim of indemnity based upon an implied warranty of fitness.

To avoid the effect of the application of the provisions of subsection (C) of §1315.16 E. €., American contends that its tests were not designed to ascertain whether a safety valve would work under conditions of actual operation and that of necessity it relied upon Titan to supply valves that would meet this requirement. To support this contention American hypothesizes a situation where a safety valve slightly out of adjustment might function efficiently when subjected to tests at American’s factory but would not function at all in the higher temperatures prevailing under actual conditions of operation. If a case arose where the possibility suggested by the hypothesis were actualized, American could claim reasonably that the defective adjustment was a latent defect that could not be discovered by its tests no matter how carefully made. But no such claim is available to American in the case at bar. It is settled beyond dispute, both by the testimony of the experts and the judgment in the Fix case, that the defective adjustment of the pilot valve in question constituted a defect that ought to have been discovered by American, and it is obvious that a pilot valve that would not work in American’s plant could not be expected to function under actual operating conditions.

There was not the slightest justification for reliance upon Titan. The large number of defective pilots disclosed by American’s tests over the entire period of its dealings with Titan was a clear and constant warning against reliance upon a supplier whose apparent want of skill was consistently demonstrated. Under the circumstances it would have been reckless for American to have relied upon Titan, and the conclusion is inescapable that it did not do so. It is not surprising that American has cited no case in which upon analogous facts recovery has been allowed to a vendee of chattels on the basis of an implied warranty. The application of the plain provisions of §1315.16 E. C., to the facts of this case compel denial of American’s right to recover upon the alleged breach of implied warranty.

Negligence

Titan was notified of the action of American Radiator, etc. v. Fix, and afforded an opportunity to defend. If Titan was negligent in adjusting the safety valve and is liable over to American, it would be bound by all matters necessarily adjudicated by the judgment in the Fix case. Freeman on Judgments, 5th ed., p. 978, Sec. 447; ibid, p. 991, Sec. 450.

Proceeding on the assumption that Titan is bound by the judgment in the Fix case, including the special findings of the jury,* it appears more probable than not that the faulty calibration of the safety valve in question was due to the negligence of Titan. As the judgment in the Fix case shows, the safety pilot was out of adjustment when it arrived at the plant of American. There is no evidence that the safety valve was so handled or dealt with between the time it left the factory of Titan until it was delivered to American as to cause any change or deviation in its original adjustment. The Fix case also establishes that there was no tampering with the safety valve while the pilot was in the possession of American or thereafter such as would cause the defective adjustment. Titan calibrated the safety valve, and it appears probable, and I find, that the improper calibration was due to the negligence of Titan. Liability of a manufacturer of a component part of a chattel to a person injured by its negligence is now settled. 4 Restatement of Torts — Negligence—Secs. 393, 395, 396; Smith v. Peerless Glass Co., 259 N. Y., 292, 181 N. E., 576; Willey v. Fyrogas Co., 363 Mo., 406, 251 S. W. (2d), 635.

In defining the duty of American in the Fix case, the Court of Appeals said, 200 F. (2d), 536:

“It was the duty of the defendant to use due care in constructing the heater in suit and to see that it was equipped with a safety pilot which would completely shut off the gas from the burners when the pilot flame was out, so that the heater could safely be used for its intended purpose and would not be a menace to those who used it or were near it. It was also the duty of the defendant to make all the ordinary and necessary tests to ascertain whether the safety pilot was in proper working condition and properly adjusted before the heater left the factory.”

The foregoing statement of the Court of Appeals is based upon the principles laid down in the leading case of MacPherson v. Buick Motor Co., 217 N. Y., 382, 111 N. E., 1050, L. R. A. 1916F, 696.

American, of course, is bound by the judgment in the Fix case in which it was held to have been negligent in failing to discover the improper adjustment of the pilot valve. Its claim for indemnity on the ground of negligence rests upon the contention that its own negligence was secondary to that of Titan, and consisted solely of passive negligence in failing to discover the defect created by Titan’s active negligence.

*Not being an indemnitor, the defendant cannot be held to be concluded as to the matters adjudicated in the FIX CASE. However, for the purpose of disposing of all the issues raised, I have assumed that as a putative indemnitor defendant should be considered bound by the judgment in the prior case. This was done so that if the Court of Appeals disagrees with the determination here made and holds that the defendant was in fact an indemnitor, there will be no need for a further trial of the issue of defendant’s negligence in making the valve.

The cases are legion in which courts have recognized the distinction between these different grades of negligence, and in many of them indemnity has been awarded a tort-feasor whose liability was secondary to that of the primary wrongdoer. The most familiar examples are to be found in cases of master and servant, where the former was held liable on the principle of imputed negligence. Other cases involve the right of a municipality, which had been held liable for its failure to abate a nuisance, to recover indemnity against the party who negligently created the nuisance. There is also a class of cases where persons buying or renting chattels or machinery have been held liable to those injured by their use and have sought indemnity against the suppliers of the defective instrumentalities. The principle that governs a claimant’s right to indemnity in the last mentioned class of cases is stated in Section 93 — Restatement on Restitution, p. 407, as follows:

“Where a person has supplied to another a chattel which because of the supplier’s negligence or other fault is dangerously defective for the use for which it is supplied and both have become liable in tort to a third person injured by such use, the supplier is under a duty to indemnify the other for expenditures properly made in discharge of the claim of the third person, if the other used or disposed of the chattel in reliance upon the supplier’s care and if, as between the two, such reliance was justifiable.”

Also pertinent is the following portion of the Comment under Section 93:

“In such cases the fact that the claimant was negligent with respect to the person harmed does not prevent him from obtaining indemnity from the supplier, if his negligence consisted merely in failing to make an inspection and his failure was because of his belief due to representations by the supplier that the chattels were not defective. In all cases indemnity depends upon the existence of some form of representation made by the supplier and reasonableness, as between the two, by the payor in relying upon the supplier’s representation.” (Emphasis supplied.)

As justifiable reliance is the basis upon which a recovery may be had upon an implied warranty of fitness, it is also the touchstone of a claimant’s right to indemnity on the ground of negligence. The only significant difference in the two theories of liability is that it is not necessary for a claimant to prove negligence in order to recover on implied warranty. But, as a claim of implied warranty will fail when it is shown that a buyer did not rely upon the seller’s skill and judgment, so also will a manufacturer’s claim for indemnity based upon negligence of a supplier be denied where he fails to prove justifiable reliance upon the skill and judgment of the latter.

It was American’s duty to inspect the safety valves as component parts of the finished product for which it was responsible. American actively assumed that duty. It inspected each safety pilot incorporated into its heaters. It has been adjudged that it negligently failed to discover the defect in the safety valve of the Fix heater. Whether its negligence was in testing carelessly or in failing to make any test of the safety valve in the Fix heater is of no consequence. There is no basis in the evidence for a claim that a failure to make any test of the safety valve in question was because of representations by the supplier that this particular valve was not defective. See Comment under Sec. 93— Restatement, supra.

It is unnecessary to repeat the reasons already stated that negate American’s claim of reliance. It is sufficient to add here that its daily experience with defective valves manufactured by Titan was a continuing caveat against such reliance. That American did not rely upon Titan is further evidenced by its constant use of its elaborate system of inspection and operational tests

American inveighs vigorously against consideration of its failure to discover the defect in the safety valve as being active negligence. It argues that it owed no duty of inspection to Titan, and that if it had refrained entirely from making any tests and was passively negligent in the strict sense of that term, it would be entitled beyond question to recover indemnity. The argument is without merit. In the circumstances of this case, failure on the part of American to make any tests would be such recklessness as would defeat its claim to indemnity. See Illustrations 7 and 8 under Sec. 93 — Restatement on Restitution, Comment under (d). This comment reads:

“(d) Recklessness. The rule stated in this Section does not apply if the claimant was reckless in the use of the things or if he suspected that the supplier had not properly performed or if he suspected that the chattels were defective.”

It would be difficult to conceive of a case where there existed a stronger reason for suspecting that “the supplier had not properly performed” or for suspecting that the chattels manufactured by the supplier were defective, than in the case at bar.

American cites and relies upon two cases where inspections were made by claimants for indemnity and recovery allowed. But these cases are readily distinguishable. In Bethlehem Shipbuilding Corp. v. Joseph Gutradt Co., 9 Cir., 10 F. (2d), 769, the ship owner was held liable to the owner of cargo that had been damaged by the unseaworthiness of the vessel. The unseaworthiness was caused by the shipbuilding company’s negligence in repairing clapper valves on the ship. The ship owner sued and obtained indemnity against the repairer. The evidence showed that after the work was done, an officer of the ship found that one clapper valve was uncovered and “bolted it back into place.” The officer also made such inspection as was possible of the other clapper valves that were not covered by cargo and found them to be in sound condition. The shipbuilding company claimed that the vessel owner had sufficient knowledge to put it upon notice of the defective character of the work and that he was negligent in not making a more thorough inspection. In rejecting this contention the court held that the vessel owner owed no duty of inspection to the repairer and that notwithstanding its knowledge in respect of the one open valve, it had a right to assume that the shipbuilding company would properly perform its work. Thus in effect it was held that the ship owner was justified in relying upon the skill of the shipbuilding company.

In Pullman Co. v. Cincinnati, N. O. & T. P. R. Co., 147 Ky., 498, 124 S. W., 385, where indemnity was allowed the railroad company, there was an injury to one of the railroad company employees caused by defective weld in a brake staff of a car manufactured by the Pullman Company. After receiving the car, the railroad inspected it twice and failed to discover the defect because it was “covered up by paint so that it could not be discovered readily.” Plainly, this was a case of a latent defect.

In Pfarr v. Standard Oil Co., 165 Iowa 657, 146 N. W., 851, L. R. A. 1915C, 336, the claimant failed to recover indemnity; but American relies on dictum of the court which is not inconsistent with the requirement of justifiable reliance. Upon a second trial of the Pfarr case the plaintiff was again denied a recovery.

General Accident, Fire & Life Ins. Corp. v. Goodyear Tire & Rubber Co., 2 Cir., 132 F. (2d), 122, was decided upon a motion for summary judgment. It was there held that in view of the affidavits filed by the plaintiff, there was a disputed matter of fact to be determined.

In none of the cited cases relied upon by the plaintiff were the parties in the relation of supplier and manufacturer, and in none of them were the facts comparable to those in the case at bar.

For the reason stated, it is held that American has not made out a case of justifiable reliance upon the skill and judgment of Titan, and is not entitled to indemnity on the ground of negligence.

An entry may be made awarding judgment in favor of defendant.


author: By ZIEGEL, J. By ZIEGEL, J.

text:
    LaMAR, In re Will.
    Probate Court, Montgomery County.
    No. 138574.
    Decided July 29, 1957.

      Harshman, Young, Colvin <Sz Alexander, Dayton, for the proponent. David J. Weinberg, Dayton, for the opponent.
    (ZIEGEL, J, of Preble County sitting by assignment in Montgomery County.)
   OPINION

By ZIEGEL, J.

(sitting by assignment).

An application to admit to probate and record a paper writing purporting to be the last will and testament of Leona A. LaMar is being contested in the case now before the Court. From the record the Court finds the material facts of this inquiry to be as follows:

On a Saturday in 1956, the exact date being unknown, but sometime in early spring, Mrs. LaMar telephoned Carrie Eshelman, one of the witnesses, to inquire whether she and her daughter, Carolyn Eshelman, the other witness, were going to be home on Sunday. Mrs. LaMar indicated that she had a paper which she wanted them to sign. While it is not clear just how either of the witnesses knew what she wanted them to sign, each definitely understood that it was her “will.” As scheduled, Mrs. LaMar came to the Eshelman home and the two witnesses subscribed the paper. The paper writing is typed, is obviously professionally drawn and on its face in the form of a will, with all signatures in proper place, including standard attestation clause. Each witness testified that at the time they signed their names to the paper it was so folded that they could see nothing but the places where they signed. Each definitely testified that at no time on that particular Sunday did either of them see Mrs. LaMar’s signature on the paper. Each testified, however, upon examining the penned signature “Leona A. LaMar” in court, that it definitely was Mrs. LaMar’s signature; that each of them had known her for many years and had from time to time corresponded with her, and that each of them was well acquainted with her signature. The instrument in question was dated February 29, 1956, a day which fell on a Wednesday.

Sec. 2107.03 R. C., provides the method of making a will as follows:

“Except oral wills, every last will and testament shall be in writing, but may be handwritten or typewritten. Such will shall be signed at the end by the party making it, or by some other person in such party’s presence and at his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature.”

Sec. 2107.18 R. C., provides for the admission of a will to probate as follows:

“The probate court shall admit a will to probate if it appears that such will was attested and executed according to the law in force at the time of execution in the state where executed, or according to the law in force in this state at the time of death, or according to the law in force in the state where the testator was domiciled at the time of his death, and if it appears that the testator at the time of executing such will was of full age, of sound mind and memory, and not under restraint.”

There is no question that Mrs. LaMar was of full age, of sound mind and memory, and not under any restraint. The only question is whether or not the writing purporting to be her last will and testament was executed as provided in §2107.03 R. C. Issue is drawn as to whether or not the alleged will was “attested and subscribed ... by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature.”

Initially it must be pointed out that the Court recognizes that a proceedings to admit a will to probate and record is not an adversary one. In re Hathaway’s Will, 4 Oh St 383. The probate court does not weigh the evidence. As §2107.18 R. C., states, it is sufficient “if it appears” that the will was properly executed. “A prima facie case in favor of the validity of the will is all that is required, and when all the evidence shows as a matter of law that such a case is made out, the court must admit the will to probate, even though the evidence is conflicting.” In re Will of Elvin, 146 Oh St 448; 32 O. O. 534, 66 N. E. (2d) 629. A “prima facie case” is most recently defined as “one in which evidence in favor of a proposition is sufficient to support a finding in its favor, if all of the evidence to the contrary be disregarded.” Roosa v. Wickward, 90 Oh Ap 213; 47 O. O. 207; 105 N. E. (2d), 454.

In the case at bar, each witness to the will testified that she did not see Mrs. LaMar sign the paper writing in question. Each testified that at the time she subscribed her name as witness she did not see the signature of Leona A. LaMar. There is thus no direct testimony whatsoever by the witnesses that either of them “saw the testator subscribe, or heard him acknowledge his signature.” While a prima facie case cannot possibly be made out here insofar as the witnesses seeing the testatrix sign the instrument is concerned, the proponent contends that a prima facie case of an acknowledgment of her signature may be implied from the surrounding circumstances.

The doctrine of implied acknowledgment has been clearly established by the Supreme Court since Raudebaugh v. Shelley, 6 Oh St 307, decided in 1856, The second syllabus is as follows:

“Where an attesting witness as to a will did not see the testator subscribe his name to the instrument, the acknowledgment of the fact by the testator in the hearing of the witness, which is requisite, is not required to be made in any particular words or any specified manner; but if, by signs, motions, conduct or attending circumstances, the attesting witness is given to understand, by the testator, that he had already subscribed the paper as his will, it is a sufficient acknowledgment.”

This point of view is followed in Haynes v. Haynes, 33 Oh St 598; In re Will of Fisher, 67 Oh Ap 6, 21 O. O. 44, 35 N. E. (2d), 784; In re Will of Wood, 67 N. E. (2d), 11 (a case from this Court); In re Estate of Schulz, 102 Oh Ap 486, 136 N. E. (2d), 730; Roosa v. Wickward, 90 Oh Ap 213, 47 O. O. 207, 105 N. E. (2d), 454; Blagg v. Blagg, 55 Oh Ap 518, 9 O. O. 181, 9 N. E. (2d), 991.

In each of the above cited cases there were, however, some definite facts upon which an implication of acknowledgment could be based. In the Raudebaugh case, supra, the signature of the testator was exposed and could have been seen by the witnesses. This being a will contest proceedings, it was held to be a question of fact for the jury as to whether the testator acknowledged his signature. In the Haynes case, supra, also a will contest proceedings, the will was signed for the testator by another at the testator’s direction but out of the presence of the witnesses. The evidence was conflicting as to whether the testator had actually acknowledged the signature, and the Court held that whether it was acknowledged was a question of fact for the jury. In the Fisher case, supra, testatrix asked the witnesseses to “witness my will.” Neither witness testified as to seeing her signature on the paper. However, the instrument was typewritten except for the signatures, and one witness did say she saw some writing. In addition, the attorney-scrivener, who was also present when the instrument was executed, testified as to its due execution. In reversing the Probate Court which had denied probate, the Court of Appeals held that a prima facie case was established. In the Wood case, supra, one witness actually testified as to acknowledgment. The instrument was folded so that the signature of testatrix would show. This Court thereupon held that a prima facie case for admission to probate had been established. In the Schulz case, supra, neither witness could remember anything about either seeing the testator’s signature or hearing her acknowledge it. One witness did not even know she was subscribing a will. The other witness knew she was subscribing a will, and testified that since her husband was a lawyer and was also present at the time, she assumed that everything was in order. On this set of facts, the Court gave weight to the attestation clause and probated the will. In the Blagg case, supra, one witness testified that he did not know what he was signing, and could not say positively that the testator’s signature was not on the will. The other witness testified clearly as to acknowledgment of testator’s signature, and it was held that a prima facie case was made out.

It is to be noted that in each of the above mentioned cases that there was some little fact or circumstances upon which an inference could be raised to the effect that the testator had actually signed the instrument before the witnesses subscribed. As is pointed out in the Blagg case, the testator must sign before the witnesses, for the reason that the testator clearly could not acknowledge a future event.

The following cases refused probate because the court could find no facts upon which to base the inference of the testator signing before the witnesses subscribed: Keyl v. Feuchter, 56 Oh St 424, 47 N. E., 140; In re Borgman’s Estate, 61 Abs 429, 105 N. E. (2d), 69; In re Pittis, 29 N. E. (n. s.). 41. See also In re Will of Phillips, unreported case No. 108404, from this Court. In the Keyl case, supra, where the alleged will was in good form as to appearance, one of the witnesses was dead, and his signature was duly proved. The other witness testified that he saw no signature of the testator on the will at the time he signed it, and that he did not know he was signing a will. The Supreme Court held that it was shown affirmatively that the alleged will was not executed and acknowledged in accordance with the statute, and the paper writing was therefore denied probate. On a similar set of facts, however, the First District Court of Appeals, in Roosa v. Wickward, supra, without citing the Keyl case, permitted a will to be admitted to probate on the theory that the proof of the signature of the deceased witness raised a presumption of proper execution of the will, which established the prima facie case even though the surviving witness did not see testatrix’s signature, and did not know she was witnessing a will.

No. 138574.

Decided October 11, 1957.

The Borgman case is factually on all fours with the case at bar. There the attestation clause was on the back of the form. Each witness was asked to witness a will. In order to see testatrix’s signature, the paper would have had to be turned over, which was not done. Thus, neither witness testified, could have testified, as to seeing the testatrix’s signature. The Second District Court of Appeals affirmed the Franklin County Probate Court and held the paper not entitled to probate and record.

From the foregoing cases, it thus appears that while Ohio courts have been most liberal in permitting an alleged will to be admitted to probate, in the absence of direct testimony that the statute on the method of making a will had been complied with as to signature and acknowledgment, there must be some evidence upon which an inference of implied acknowledgment can be based. In the case at bar, the Court can find no such evidence. There is no conflict in the testimony here. Each witness testified positively that she did not see the decedent’s signature at the time she subscribed as witness. There being no conflict in the testimony, the Court is required as a matter of law to determine whether the alleged will was duly attested and executed. Cf. Sears v. Sears, 77 Oh St 104; 82 N. E. 1067. Since neither witness saw the decedent’s signature at the time they signed as witnesses, there is no proof that decedent signed before the witnesses subscribed. Since there is no proof that decedent signed before the witnesses did, there can be no implied acknowledgment of a signature not shown to exist at the time an acknowledgment should have taken place.

The paper writing purporting to be the last will and testament of Leona A. LeMar, deceased, will be denied probate.

OPINION

By ZIEGEL, J.

(sitting by assignment).

An interlocutory order denying probate to an instrument purporting to be the will of Leona A. LaMar, deceased, having been entered as provided in §2107.181 R. C., and further notice having been given as provided therein, this cause is now before the Court for decision on final hearing.

At the final hearing, the two witnesses to the instrument, who had previously testified at the original hearing, were recalled. The only matter not brought out at the first hearing was elicited over objection to the effect that the decedent was a woman of some business experience; and that, because of her business experience, the witness was certain that she had signed the instrument before the witnesses attested even though the witnesses neither saw the decedent’s signature nor heard her acknowledge the same.

This court does not believe that such testimony raises any implication of acknowledgement by the decedent of her signature. This is not a ease in which the witnesses could not remember what had happened at the time they were asked to sign the instrument. Each one of them remembered very clearly the incidents of the occasion. Each unequivocally testified that she neither saw the decedent sign the instrument nor heard her acknowledge her signature. Further, while there was some testimony concerning the decedent’s business experience, there was none to show that she had had any legal training or specific experience with the execution of a will. Thus the court holds that the doctrine enunciated in In re Estate of Schulz, 102 Oh Ap 486, 136 N. E. (2d), 730, does not apply here.

The original opinion in this cause and a supplemental brief prepared by counsel for the proponents crossed in the mails. As a result, no consideration was given to the arguments there presented. In that memorandum, the recent case of In re Estate of Lyons, 166 Oh St 207, which was not considered in our original opinion, was cited. The statement of law made in that case is consistent with our holding here. Paragraph 1 of the syllabus provides as follows:

“In determining whether a will which is presented for probate and which is complete and regular in appearance and which apparently complies with all formalities should be admitted to probate, the Probate Court is not authorized to determine as a fact whether such will has been attested and executed according to law, but is merely required to determine whether there is substantial evidence tending to prove that fact, i. e., evidence which will enable a finding of that fact by reasonable minds.”

There were three witnesses to the Lyons case will, one of whom testified in detail concerning the proper execution of the will. Thus, there was in that case “evidence which will enable a finding of that fact by reasonable minds.” The Supreme Court, therefore, simply held that the Probate Court was not authorized to weigh the testimony in a proceeding to admit a will to probate. In the case at bar there is no testimony to weigh concerning the lawful execution of the purported will in question.

Counsel for the opponent may prepare a final order for the court’s signature refusing to probate the instrument in question.


author: Per CURIAM.

text:
    PUBLIC FINANCE CORPORATION NO. 1, FORMERLY PUBLIC LOAN CORPORATION OF YOUNGSTOWN, Plaintiff-Appellant, v. MENELLE, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3876.
    Decided November 1, 1956.
    Morris Mendelssohn, Youngstown, for plaintiff-appellant.
    Avetis G. Darvanan, Youngstown, for defendant-appellee.
   OPINION

Per CURIAM.

This is an action for the recovery of $324.73 with interest for money loaned by the plaintiff, Public Loan Corporation of Youngstown, to the defendant on or about December 8, 1954.

The petition alleges that the plaintiff made the loan in reliance upon a written financial statement which was false and untrue.

, To this petition the defendant filed an answer which admits he did make a loan with the plaintiff on the eighth day of December, 1954, and further denied generally the allegations contained in the plaintiff’s petition.

Bankruptcy was not pled in the answer although there is evidence that defendant was declared a bankrupt on or about June 27, 1955.

He did not list the plaintiff’s claim in his bankruptcy petition. He did list a claim owing to Public Loan Co., not Public Loan Corporation of Youngstown from whom defendant secured this loan, which is the subject matter of this present action. Plaintiff corporation is an entirely independent creditor from the company listed in the bankruptcy petition of defendant.

Under the pleadings in this case the defendant borrowed the money from plaintiff, Public Loan Corporation of Youngstown, executed his note therefor to plaintiff, Public Loan Corporation of Youngstown, and executed a receipt for the consideration thereof, and admits that it has not been paid, and not having listed the debt in his bankruptcy petition bankruptcy could not be claimed as a discharge, and was not set up as a defense in this action.

Therefore the plaintiff, Public Loan Corporation of Youngstown, was entitled to judgment on the pleadings for the amount of the loan regardless of whether there was a misrepresentation in the financial statement or application which he filed at the time of obtaining the loan, or any fraud in obtaining the loan.

Clearly the plaintiff, Public Loan Corporation of Youngstown, was entitled to judgment for the amount prayed for in its petition.

The judgment of the Municipal Court is reversed and final judgment is entered for plaintiff, Public Loan Corporation of Youngstown, as prayed for in the petition.

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