text:
    FRY, Plaintiff-Appellant, v. HILDRETH, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2103.
    Decided December 22, 1950.
    Jake Froug, Dayton, Wilbur Spidel, Greenville, for plaintiff-appellant.
    Warren Ferguson, of Landis, Ferguson, Bieser & Greer, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

This is an appeal on law from the Municipal Court of Dayton returned in favor of the defendant. Motion for new trial was filed and overruled.

Plaintiff-appellant has assigned thirteen separate alleged errors, some of which have not been discussed in the brief. The Court has carefully examined the entire record and considered every error assigned and finds no error assigned well made.

We briefly comment on the several questions discussed in appellant’s brief. The appellant cannot urge as error the action of the court in striking certain allegations from the statement of claim. The plaintiff filed an amended statement of claim. By pleading over any error committed was waived. We find no prejudicial error in the record relative to the admission or exclusion of evidence or in regard to any remarks made by the trial judge in the presence of the jury. We do not find the verdict and judgment to be against the manifest weight of the evidence; neither does the record support the contention that the verdict was given under influence of passion or prejudice. Motion for new trial was properly overruled.

Five alleged errors relate to the general charge, special instructions and the submission of interrogatories. The court refused to give special instructions before argument numbered 1, 2, 4 and 6 requested by the plaintiff. At the conclusion of the general charge the plaintiff requested the court to give a special formulated charge on the question of right-of-way, which was refused. All these requests were based on §§6307-40, 6307-42 and 6307-43 GC, and on the factual assumption that the driver of defendant’s truck had backed said truck out of a private road, driveway or alley, onto and across the highway. There was no issue made in respect thereto by the pleadings or the evidence. The evidence shows that the defendant’s truck was at all times on said highway. To charge as requested would have only confused the jury. We find no prejudicial error committed in refusing to instruct the jury as requested. We find no error in giving special instructions numbered 8, 9 and 13 requested by the defendant. These instructions related to the manner of operation of the defendant’s truck and plaintiff’s automobile on the highway. The statement of the court in Proctor v. White, 22 Abs 410, that “the defendant, however, was under no obligation to see the plaintiff if she were off the highway” has no application here.

Appellant claims that the failure of the trial court to define negligence in the general charge constituted reversible error. In our opinion this is an error of omission and not commission. To fail to so charge was error, but such failure does not require reversal unless the court finds, on the basis of the whole record, and the charge as a whole, it was prejudicially erroneous. Counsel for appellant failed to call this omission to the attention of the court, although the record shows at the end of the general charge the court asked counsel whether there was anything further. Thereupon a lengthy discussion took place between the court and counsel relative to other phases of the case, but no request was made of the court to define negligence. The court in its general charge did charge correctly on contributory negligence and further charged that in the use of the streets the plaintiff and defendant were required to use reasonable care and prudence; that they were required to use the care that an ordinarily prudent person would use. In Telinde v. Ohio Traction Co., 109 Oh St 125, 141 N. E. 673, it was held that the failure to charge on contributory negligence taken in connection with an erroneous instruction upon the subject of the measure of damages was prejudicially erroneous. In that case the jury rendered a verdict for the plaintiff. The court discusses the rule followed in Columbus Railway Co. v. Ritter, 67 Oh St 53, 65 N. E. 613; State v. McCoy, 88 Oh St 447, 103 N. E. 136, and State v. Driscoll, 106 Oh St 33, 138 N. E. 376, which stresses the duty of counsel to aid the court by calling attention to omitted matters. The court however applied the rule laid down in B. and O. Railroad Co. v. Lockwood, 72 Oh St 586, 74 N. E. 1071, which requires the court to separately and definitely state the issues and to charge with respect thereto. We do not believe that the rule applied in the Lockwood and Telinde cases is applicable here. Rather, we believe that the rule stated in State v. McCoy, supra, on page 450 of the opinion, is applicable, which is:

“It is equally a settled rule of practice in this state that where the charge as given is free from prejudicial error but fails to cover all the questions involved in the case, such failure is not a ground for reversal unless it was called to the attention of the court and further instructions requested and refused, provided the jury is not misled by the charge as given.”

This rule has been repeatedly followed by the courts of this state in both civil and criminal cases. In State v. Driscoll, supra, the court in a rape case omitted to charge that the defendant may be found guilty of assault and battery, or assault. In Holt v. State, 107 Oh St 207, 325, 326, 140 N. E. 349, in a first degree murder charge in which a policeman was killed, the court correctly charged as to murder in the first degree on the first count, but omitted to charge on the second count, which was based on provisions of §12402-1 GC, for killing a policeman. In Norris v. Jones, 110 Oh St 598, 608, 144 N. E. 274, the court failed to charge on and define pecuniary damages in a damage action. In Beeler v. Ponting, 116 Oh St 432, 156 N. E. 599, the court in a negligence action omitted in a proper case to charge on the doctrine of res ipsa loquitur. See also the recent case of State v. Tudor, 154 Oh St 249; Portney v. Frank, 77 Oh Ap 357, 65 N. E (2d) 290; Bachman v. Ambos, 83 Oh Ap 141, 79 N. E. (2d) 177; Hubbard, Admx, v. C. C. & C. Highway, Inc., 50 Abs 78, 76 N. E. (2d) 721.

In the instant case the charge was otherwise correct and we do not believe the jury was misled by the charge as given. On the whole récord it appears that substantial justice has been done. Thus any error appearing is non-prejudicial. Sec. 11364 GC.

We fail to find any prejudicial error in the language used in the general charge as claimed by appellant.

The interrogatories offered by the defendant were properly submitted to the jury. The court instructed the jury that the interrogatories should be answered “in case a general verdict is rendered and that is if yon give a verdict for the plaintiff.” This mis-statement was immediately called to the attention of the court and a correct instruction given. No prejudicial-error resulted.

Finding no error in the record prejudicial to the rights of the appellant the judgment is affirmed.

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


source: Caselaw Access Project

author: By PECK, J.

license: Public Domain

text:
    CINCINNATI (City) v. WESLEYAN CEMETERY ASSOCIATION.
    Common Pleas Court, Hamilton County.
    No. A-120525.
    Decided November 28, 1950.
    Henry M. Bruestle, city solicitor, Ed. F. Alexander, special counsel, Cincinnati, for plaintiff.
    Abraham M. Tennenbaum, Allen C. Roudebush, Cincinnati, for defendant.
   OPINION

By PECK, J.

Both on the law and the facts this case is entirely unlike any other which has been brought to our attention. It is an action brought by the City of Cincinnati asking that real property owned by the defendant be declared a part of the plaintiff -municipal corporation. The case is before the Court on the defendant’s demurrer to the petition.

The allegations of the petition, admitted for the present purpose by the demurrer, disclose that the subject property is a parcel owned and occupied by the defendant for cemetery purposes. The parcel is entirely surrounded by the City of Cincinnati, and is roughly triangular in shape, being bounded on two sides by Colerain Avenue and Hoffner Street. At one time both the subject parcel and the entire surrounding area -were included in Millcreek Township. Through the years -various other portions of the township have become parts ef the plaintiff and other municipal corporations, and the factual novelty of the present situation arises from the fact that the property here under consideration comprises all that remains of what either is or was Millcreek Township. As a governmental authority the Township has ceased to exist, liaving no trustees, justice of the peace, funds, treasurer, constable or other officers. It is not recognized by the State of Ohio as a township in the matter of tax distributions. Ferhaps most astonishing of all, there is only one adult in.habitant of the Township (if it be that) possessing the qualifications of an elector, and she can not exercise her right to vote because the property is not a part of any local government area and is not therefore a part of any voting precinct.

After reciting the foregoing, and other facts, the petition alleges that the plaintiff municipal corporation is the ■only local government in a position to enforce law and order in the area and to protect property therein. Apparently as illustrative, it is alleged that from time to time memorial ceremonies are conducted on the premises, and that the defendant “is unable to, and does not undertake” to provide policing at such times.

Finally, it is alleged that a controversy exists between the parties as to whether it has become a part of the City of Cincinnati “by force of the facts” alleged, and it is pointed out that under the existing law of Ohio annexation cannot he effected without the consent of the defendant, which is not forthcoming. It is admitted that the area has never been formally annexed, and the problem is therefore whether it has in some other manner become a part of the City of Cincinnati.

The position principally contended for by the defendant is that no such controversy exists between the parties as would permit the Court to take jurisdiction under the provisions of §12102-1 GC, et seq, known as the uniform declaratory judgments act. If this were the only point raised by the demurrer we would be disposed to overrule it because we are of the opinion that a controversy exists between the parties. In the case of Village of Bay v. Gelvick, 58 Oh Ap, 51, 11 O. O. 457, the plaintiff municipal corporation sought to have a determination made of rights and legal relations existing between it and its residents determined. There, as h.ere, no further relief was sought. In holding the action properly brought under the' uniform declaratory judgments act, the court said, (p. 460):

“Under the provisions of this section (§12102-1 GC) jurisdiction is conferred on the Common Pleas Court to declare rights, status and other legal relations of the character sought in the petition in this action, and under the express provisions of the section such declaration may be made whether or not further relief is or could be claimed. The Common Pleas Court therefore had jurisdiction of the subject-matter notwithstanding the fact that in the petition the plaintiff seeks declaration of rights, status and other legal relations without further relief.”

Although the defendant relied in oral argument (it filed no brief) primarily on the ground discussed above, the demurrer is general in form. We are therefore free to consider whether for any other reason the petition is insufficient to state a cause of action. In Alf v. Hunsicker, 82 Oh Ap, 197, 37 O. O. 539, it was held that where the pleadings disclosed no cause of action in favor of the plaintiff judgment could be entered on the pleadings without a declaration of the plaintiff’s rights having been made, “other than the general finding that the plaintiff has no cause of action” (Syllabus 2).

Reduced to its simplest elements, the claim of the plaintiff might be said to be simply, “Somebody should do something about this situation.” Whether we agree or disagree with this position is unimportant. The question is, granting that such a condition should not be permitted to continue, does the Court have either a right or a duty to take action? Although the form of the prayer of the petition appears to be a 'seeking of a declaration of rights, what the plaintiff is really attempting to do is to induce the Court to annex the subject property to the City of Cincinnati by judicial decree, since the plaintiff does not even pretend that annexation has heretofore been effected in any other manner. Clearly the Court does not have the right to take such action.

In the petition the plaintiff inferentially indicates dissatisfaction with the law of Ohio, which does not permit annexation without approval of owners and residents of the area concerned. We can only point out dissatisfaction with statutory law should be ■ expressed to the legislature and not to the courts, since it is our duty to interpret and enforce the law, not to enact it.

The prayer also asks that in the event the parcel is found not to be a part of the City of Cincinnati, a declaration be made as to on whom falls the duty of the exercise of the government function over it. This question is not before the Court at this time and no opinion on that subject is expressed.


author: By WISEMAN, J: By WISEMAN, J:

text:
    SENN, Admrx., Plaintiff-Appellee, v. LACKNER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2125.
    Decided January 17, 1951.

      Estabrook, Finn & McKee, Dayton, for plaintiff-appellee.
    Iddings, Jeffrey, Weisman & Rogers, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on law from the Common Pleas Court of Montgomery County from a judgment entered on a verdict rendered in favor of the plaintiff. The action is one for wrongful death arising out of an automobile accident which occurred on U. S. Highway No. 25 near the boundary line between Warren and Butler Counties.

The defendant-appellant was engaged in the sale of both new and used automobiles in the City of Miamisburg, Ohio. The driver of defendant’s automobile had been employed as a salesman by the defendant on March 15, 1949. The accident occurred on April 23, 1949, at about eight-thirty o’clock in the morning. The salesman resided in Cincinnati, Ohio, and was using an automobile owned by the defendant to travel from his residence to the defendant’s place of business at the time the accident occurred. The salesman’s hours of employment were from nine A. M. until five-thirty P. M.

The salesman was driving in a northerly direction and the plaintiff’s decedent was driving in a southerly direction at the time of the collision. There is evidence supporting the claim that when the two automobiles were sixty yards apart two dogs started to cross the highway from the east side of said highway; that the salesman’s automobile struck the first dog and that he at that time swerved his automobile from the northbound traffic lane across the center line of the highway and collided with the automobile being driven by plaintiff’s decedent in the southbound traffic lane.

In her amended petition plaintiff alleges five specifications of negligence:

(1) In causing and permitting defendant’s said automobile to run into and collide with the automobile of plaintiff’s decedent;

(2) In failing to keep defendant’s automobile under control;

(3) In operating defendant’s automobile at a high rate of speed, to-wit: 55 miles per hour, a speed greater than is reasonable and proper under the circumstances there and then existing;

(4) In failing to change or divert the course of defendant’s automobile after defendant’s agent saw, or in the exercise of ordinary care ought to have seen, the dangerous and perilous position of the automobile of plaintiff’s decedent;

(5) In failing to keep defendant’s automobile on the right side of the road.

The defendant filed an amended answer denying the allegations of negligence and specifically denying that the driver of the automobile owned by the defendant was his duly authorized agent as alleged or that he was acting in the service of or on the business of the defendant, and as a further defense pleaded contributory negligence on the part of the plaintiff. To the amended answer the plaintiff filed a reply denying each and every allegation set forth in the amended answer inconsistent with the averments of plaintiff's petition.

The appellant in his brief states that there are two principal issues presented: The agency of the driver of defendant’s automobile, and whether the negligence of defendant’s driver, if any, was the proximate cause of the collision.

Fourteen errors are assigned. The first, second and third errors assigned relate to the admission and exclusion of evidence. One of the plaintiff’s witnesses, an occupant of the automobile driven by plaintiff’s decedent, testified that “As he was getting closer and closer, and we were getting closer to the dogs the first dog was near the center of the roadway, and about this time the on-coming car, in an attempt to avoid hitting the second dog, swerved into our Jane, hitting the first dog.” Defendant’s counsel interposed an objection and moved to strike. The record is none too clear whether the entire answer was sought to be stricken, or only the words “in an attempt to avoid hitting the second dog.” In his brief counsel for defendant contends the entire answer should be stricken. The objection and motion were overruled. The words last quoted should have been stricken, but we find no prejudicial error resulting. The remainder of the answer was competent, relevant and material.

The plaintiff’s decedent was a classified civil service employee at Wright Field, Dayton, Ohio, and was rated as “Radio Engineer, P-4” at an annual salary of $5,232.00. There was testimony introduced to show that from 1942 to the date of his death, plaintiff’s decedent had received ten promotions, stepping up his annual salary from $1,800.00 to $5,232.00. His service record, which was “excellent,” was placed in evidence. Several witnesses were permitted to testify for the plaintiff relative to the chance of promotion of decedent. One witness was the immediate superior of the decedent, another in charge of the administrative work of the laboratory and responsible for carrying out the proper pay schedule at Wright Field, and the other witness was employed at Wright Field as Chief of Aircraft Radiation Laboratory and familiar with the evaluation process that governs the efficiency ratings entered on service records and the time factors controlling promotions. All three witnesses were acquainted with the plaintiff’s decedent and familiar with the work performed by him. All three witnesses testified, in answer to a hypothetical question, that a person with decedent’s qualifications and service record had a good opportunity for promotion. Was this testimony admissible? The appellee contends that in determining the pecuniary injury suffered by the next of kin of the decedent the jury had the right to consider not only the earnings of decedent at the time of his death, but, also, the reasonable expectancy of earnings in the future. That this is the established measure of damages is conceded. Grotenkemper v. Harris, Admr., 25 Oh St 510; Schendel v. Bradford, 106 Oh St 387, 391, 140 N. E. 155; N. Y. C. & St. L. Ry. Co. v. Roe, Admr., 4 C. C. N. S. 284; Acher v. Columbus and Southern Ohio Electric Co., 42 Abs 430, 60 N. E. (2d) 932; Bartlebaugh v. Pennsylvania Rd. Co., 51 Abs 161, 78 N. E. (2d) 410. But is testimony on the part of a witness relative to the prospects of decedent for promotion competent? In Hesse, Admx. v. Ed. Co., 58 Oh St 167, 50 N. E. 354, the court on page 171 held:

“Against the objection of the defendant the trial court permitted witnesses to testify that the plaintiff’s intestate was in the line of promotion when he received the fatal injuries. The jury were otherwise fully informed as to the intestate’s habits, health, position and capacity to earn. These and other like circumstances constituted the existing facts from which the jury were to determine the amount of damages which they should assess. The evidence to which the objection was made was introduced to show a supposed probability that his capacity to earn would have become greater in the future. It started an inquiry which could have no other effect than to consume time unduly and to introduce speculative considerations into the assessment of damages. Brown, Admr. v. The Chicago, R. I. & Pac. Ry. Co., 64 Iowa, 652.”

We are unable to determine from the opinion in that case the source of information of the witnesses, or whether the witnesses were properly qualified to testify on the subject. That case cannot be considered a precedent on the question raised here. In the instant case the testimony was in the nature of opinion testimony given by witnesses qualified as experts. The witnesses were given a hypothetical set of facts and asked to state what chances such a hypothetical person possessed for promotion. The general rule is that an opinion or conclusion of a witness is incompetent and inadmissible. The reason for such exclusion is that it invades the province of the jury as triers of the facts. However, exceptions to the general rule have been found to be necessary to the proper administration of justice. A well recognized exception is where scientific and specialized knowledge or experience is required in a particular art, science, trade or business and for which the general common sense and practical experience of the jury are inadequate. Vol. 17 O. Jur. page 421, Section 331. Any evidence which would assist the jury in fixing the reasonable expectancy of future earnings Was competent. The work in which the plaintiff’s decedent was employed was of a highly technical character in a field concerning which the public and the jury would have little knowledge, and the system under which promotions were granted was likewise complicated and technical. It therefore was the obligation, as well as the privilege, of the plaintiff to offer any probative testimony as to the probable future earnings of plaintiff’s decedent. In our opinion this evidence was competent.

In this type of action it is proper to introduce by a qualified witness the cost of purchasing a simple annuity based on the life expectancy of the d'ecedent and yielding two-thirds of his annual salary at the time of his death, which was conceded to be the amount contributed toward the family support. Bartlebaugh v. Pennsylvania Rd. Co., 150 Oh St 387, 82 N. E. (2d) 853.

Photographs of the highway at the place of collision, taken the day after the accident, were properly admitted as the evidence shows that the marks on the highway shown on the photographs existed immediately after the collision. There was evidence to support the conclusion that the photographs clearly represented the condition immediately after the collision and therefore were admissible. Vol. 17 O. Jur. page 579, Section 472; Vol. 39 O. Jur. pages 626, 627, Section 49.

Prior to the trial the deposition of the defendant’s salesman was taken and on cross-examination at the trial plaintiff’s counsel questioned the salesman relative to statements made in the deposition at variance with his testimony in court respecting the speed of plaintiff’s decedent’s automobile immediately before the collision. Counsel for the defendant, on re-direct examination, sought to establish that in the deposition the witness had made other statements respecting the speed of decedent’s automobile consistent with his testimony in open court. Objection was sustained to defendant’s counsel reading such questions and answers from the deposition. Inconsistent statements may be shown on cross-examination to impeach a witness. Coca Cola Bottling Works Co. v. Meyer, 28 Oh Ap 468, 162 N. E. 826; Sabo v. State, 29 Oh Ap 200, 163 N. E. 496; Saunders v. Wiggins, 48 Oh Ap 174, 192 N. E. 745. But an impeached witness cannot be rehabilitated by showing prior consistent statements. Cincinnati Traction Co. v. Stephens, 75 Oh St 171, 79 N. E. 235; Miller v. Piqua Transfer and Storage Co., 57 Abs 325; Vol. 42 O. Jur. page 437, Section 429; Vol. 58 Am. Jur. page 457, Section 817; Vol. 140 A. L. R. page 49 (citing Cincinnati Traction Co. v. Stephens, supra); Vol. 41 L. R. A. N. S. page 878; Jones on Evidence, 4th Edition, Vol. 3, page 1612, Section 869.

We find no misconduct on the part of the trial judge as claimed under appellant’s fifth assignment of error.

For his fourth and sixth assignments of error the appellant contends the court erred in overruling defendant’s motion for directed verdict at the close of plaintiff’s testimony and again at the close of all the testimony. When defendant elected to proceed to present his defense he waived his right to predicate error on the action of the court at the end of plaintiff’s case. Wilkinson v. Erskine & Son, 145 Oh St 218, 61 N. E. (2d) 201; In Re Estate of Robinson, 145 Oh St 55, 61, 60 N. E. (2d) 615; Halkias v. Wilkoff, 141 Oh St 139, 47 N. E. (2d) 199; Youngstown & S. Rd. Co. v. Faulk, 114 Oh St 572, 578, 151 N. E. 747; Vol. 39 O. Jur. page 872, Section 216.

The action of the court in overruling the defendant’s motion for directed verdict at the close of all the evidence, is properly challenged and will be considered, together with the eleventh assignment of error, that the verdict and judgment are against the manifest weight of the evidence, and are not sustained by sufficient evidence and are contrary to law, and the twelfth assignment of error, that the court erred in overruling defendant’s motion for judgment non obstante veredicto, and the thirteenth assignment of error, that the court erred in •overruling defendant’s motion to vacate and set aside the judgment and grant a new trial. These assignments of error raise the question as to the sufficiency of the evidence on the two major issues, viz: Whether the driver of defendant’s automobile was negligent and, if so, whether the defendant was chargeable with the negligent acts of the driver on the ground the driver was defendant’s agent and acting within the scope of his employment at the time of the collision. On the question as to whether the driver was negligent we have no difficulty in finding, on the basis of the whole record, that the verdict was not against the manifest weight of the evidence, was sustained by sufficient evidence, and was not contrary to law. There was ample evidence to support the verdict on the basis that the driver of defendant’s automobile was guilty of negligence which was the proximate cause of the collision.

We come now to consider the principal question in the case: Was the driver of defendant’s automobile acting as agent for defendant and within the scope of his employment at the time and place of collision?

The evidence when construed most favorably to plaintiff shows that the driver of defendant’s automobile was employed as a salesman by the defendant on a fixed salary to sell automobiles for the defendant at his place of business in the City of Miamisburg; that his working hours were from nine A. M. until five-thirty P. MÍ; that he resided in Cincinnati, Ohio; that the salesman did not own an automobile, but that it was his purpose to purchase a new automobile from defendant; that he planned later to move his residence to Miamisburg; that the defendant granted permission to the salesman to use a used automobile owned by the defendant to drive to his residence in the evening and return to his place of employment in the morning; that the salesman had a choice to use or not to use an automobile for such transportation and if an automobile were used he had a choice of which automobile to use; that the automobile used at the time of collision was equipped with dealer license plates of the defendant; that the salesman at times purchased gasoline for the automobile so used for which he was not reimbursed; that the salesman had other means of transportation to and from his place of employment by the use of a bus line; that no consideration passed or was agreed upon between the defendant and the salesman on account of the use of such used automobile for such purpose; that the duties of the salesman wére to handle prospective purchasers at defendant’s place of business and to sell automobiles; that the salesman was authorized to sell used automobiles owned by the defendant at a fixed price to any person at any time or place, regardless of the place of residence of the purchaser; that the sales actually made by the salesman were made at defendant’s place of business; that the automobile driven by the salesman at the time of the collision was taken by the salesman with the consent of the defendant for the purpose of going to his residence in the evening and returning to his place of employment the next morning; that at the time of the collision the salesman was driving from his residence in Cincinnati to his place of employment in Miamisburg.

It will be observed that the collision occurred at eight thirty A. M. and that the salesman’s duties did not begin until nine A. M. at the defendant’s place of business.

Was the salesman acting under the direction or control of defendant at the time of collision? Was the salesman acting in the discharge of his duties as salesman at the time? Was the salesman engaged at the time in the prosecution of the defendant’s business? The latest expression of our Supreme Court on this question is Rogers v. Allis-Chalmers Mfg. Co., 153 Oh St 513, 92 N. E. (2d) 677, in which the Court, on page 526 said:

“In order to obligate a master to respond in damages for the negligence of a servant it is necessary not only that the servant be acting within the scope of his employment but the master must have the power of control and direction over the conduct of the servant.” '

In the instant case the facts do not meet the test. There is no evidence whatever that the defendant had “the power of control and direction” over the salesman while the salesman was driving from his residence to his place of employment. The controlling rule is simply stated but the difficulty always lies in its application. In The Lima Railway Co. v. Little, 67 Oh St, 91, 65 N. E. 861, it was held that the test of the master’s liability is “whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.” In Nagy v. Kangasser, 32 Oh Ap 527, 168 N. E. 517, it was held that the employee’s act must be a “part of actual duty connected with employment.” In that case the accident happened while the employee was driving his own automobile on his way to work. In Conart Motor Sales, Inc., v. Shullo, 70 Oh Ap 423, 46 N. E. (2d) 415, the facts were similar to those in the instant case. In that case the driver of plaintiff’s automobile was a salesman for plaintiff and at the time of the accident was driving an automobile owned by the plaintiff from the place of business to his residence for the purpose of eating his dinner, intending to return to his place of employment. The court held that the salesman was not on his master’s business at the time of collision; that the rule of respondeat superior did not apply and that a plea of contributory negligence in a suit by the employer against a third person is not a good defense. In Gutwein v. C. & S. Auto Supply Co., 18 Abs 577, where similar facts appear, this court held that “It is not error to direct a verdict for the defendant, where the evidence shows that the employee had borrowed the company car for personal use the night before, and was returning it to the defendant when the collision occurred.” In that case the employee was driving to his place of employment in the morning when the collision occurred. In Brown v. Bond, 190 Miss. 755, the court held:

“The mere permission of master for servant to use an automobile in going to and from his meals or his home does not render servant master’s ‘agent’ or render master liable for servant’s negligence while so doing.”

In Vol. 57 C. J. S. page 326, Section 574 b. the text is as follows:

“The facts that in perpetrating the injury complained of the servant, while acting for some purpose of his own, used facilities or instrumentalities supplied by the master and that the injury could not have been inflicted without such facilities or instrumentalities impose no liability on the master. The master is liable only when his facilities or instrumentalities are being used by the servant for the purpose of advancing the employer’s business or interests. This is true even though the facilities or instrumentalities causing the injury were used with the consent of the master or were maintained by the master entirely for the use of the servant, and it has been held that the fact that the facilities furnished were dangerous by reason of defects therein is immaterial.”

The only possible theory upon which this case could have been submitted to the jury would have been on the ground that a reasonable inference of agency arose from the fact that the evidence showed that the automobile being driven by Fink at the time of the collision was owned by the defendant and had been taken by Fink with permission of the-defendant on the night before the collision occurred. In Dowd-Feder Co., Inc. v. Truesdell, 17 Abs 647, this Court held that in the absence of any evidence presented by the defendant used car company as to the nature of the business the salesman was engaged in while driving defendant’s automobile the inference that the salesman was acting within the scope of his employer’s business is sufficient to sustain a verdict for the' plaintiff. It must be observed that in that case the defendant failed to introduce any evidence as to the nature-of the business the driver of the defendant’s car was engaged in at the time of the collision. In the case at bar there-is positive and overwhelming evidence in proof of the fact, that the defendant granted permission to the plaintiff to take the used car on the night before the collision for the purpose of going to his residence in Cincinnati; that at the time of the collision he was driving this used car from his residence-to his place of employment; that the accident occurred at. 8:30 A. M. and that his duties at his place of employment, did not begin until 9:00 A. M.; that at the time the defendant, granted Fink permission to use the car the purpose of its use-was the convenience of Fink and not the defendant; that, at the time the collision occurred the car was being used not-in furtherance of the master’s business, but for the personal convenience of Fink. This evidence is not contradicted. We-recognize the rule that in the absence of evidence to the contrary a reasonable inference may arise with respect to the-question of agency.- However, where the evidence is positive and uncontradicted, as in this case, with respect to the matter of the permissive use of the defendant’s car by the driver for the purpose of the driver’s personal convenience and not-in furtherance of the master’s business, no inference may be drawn that at the time of the collision the driver was acting-within the scope of his employment. One of the latest pronouncements of the Supreme Court on this question is found* in Jackson v. Frederick, 152 Oh St 423, 426, 89 N. E. (2d) 645, which approved and followed White Oak Coal Co. v. Rivoux, Admrx., 88 Oh St 18, 102 N. E. 302. See also Hillman v. Servive Packing Co., 67 Oh Ap 254, 36 N. E. (2d) 433; Zarn, Admx. v. Dominique, 39 Oh Ap 442, 449, 177 N. E. 850; House v. Stark Oil & Metal Co., 33 Abs 345. In the latter case the court, on page 353, says:

“The situation differs radically from those cases where-the vehicle being operated is the ordinary automobile, which. may be in the possession of the driver under varying circumstances, none of which would constitute or tend to constitute him the agent of the owner. We have many cases where an automobile is operated without the owner’s consent, where the driver is out on a joy ride. We have cases where the driver is employed by the owner of the automobile, but his occupation does not include the operation of the automobile. We have cases where the automobile owned by the defendant is operated by the defendant’s authorized agent, but at the time of the accident is being used not for the principal’s business, but for some purpose in which the driver alone is interested.”

The following cases cited may be distinguished on the facts: Amstutz v. Prudential Life Insurance Co., 136 Oh St 404, 26 N. E. (2d) 454; E. S. Gahagen & Smith, 48 Oh Ap 290, 194 N. E. 26; Standard Motor Sales v. Miller, 39 Oh Ap 7, 164 N. E. 55; Rhude v. Koehl, 55 Abs 532; Bolatin-Drabkin Furniture Co. v. Batten, 18 Abs 113; Authorized Dealers, Inc. v. Alms & Doepke Co., 12 Abs 158. In Fink v. Industrial Commission, 25 Abs 21, the court found that the employee was serving the interest of the master as well as his own and that the master had the right to.control the actions of the employee.

An interrogatory was submitted to the jury which required it to state specifically what business of his employer the driver of the defendant’s automobile was engaged in at the time .the accident occurred, which was answered: “Transportation in the course of selling used cars for his employer.” The case of the appellee is not strengthened by this answer. In fact, the answer of the jury demonstrates a weakness in the case of the appellee as there is no evidence to support the answer or from which a reasonable inference may be drawn to that effect.

In our opinion any inference as to agency was so completely refuted by the uncontradicted evidence on the subject that reasonable minds could not differ on this matter; reasonable minds could only conclude that the salesman at the time and place of collision was not acting within the scope of his employment or in furtherance of his master’s business. The court should have sustained defendant’s motion for directed verdict and defendant’s motion for judgment non obstante veredicto.

If the court is incorrect in its judgment that the evidence on the question of agency was insufficient as a matter of law to submit the case to the jury, we have no hesitancy in concluding that on the basis of the whole record the verdict and judgment is contrary to the manifest weight of the evidence and that the judgment should be reversed on that ground.

For the seventh assignment of- error appellant contends the court erred in giving before argument special instruction No. 4 requested by the plaintiff. This instruction reads as follows: “I charge you as a matter of law that if Henry T. Fink at the time of the accident was doing something he was authorized to do, which may be fairly inferred or implied from the nature of his employment and the duties incident to it, he may be said to have been in the course of his employment. Or it may be stated in this way: Was Henry T. Fink, at the time of the accident, doing an act in furtherance of Elmer Lackner’s business, which he was expressly or impliedly authorized to do?” While we do not approve of the court giving a special instruction in the form of a question, we do not believe that the statement of the court in the form of a question constituted prejudicial error. The first part of the charge was proper. This charge in its entirety is approved in Weygandt’s Ohio Charges, Second Edition, Section 821 B.

Appellant for his eighth assignment of error claims the court erred in refusing to give special instruction before argument requested by the defendant, which reads as follows: “I charge you, as a matter of law, that to maintain an action for negligence, the negligence complained of must be the direct and proximate cause of the injuries inflicted. I further charge you that proximate cause in the law of negligence is such a cause as operates to produce particular consequences without the intervention of an independent, unforeseen cause, without which the injuries would not have occurred.” In our opinion this was a correct statement of the law. See Vol. 29 O. Jur. page 478, Section 64. In Baltimore and Ohio S. W. Ry. Co. v. Moloney, Admrx., 7 C. C. N. S. 437, a charge in the identical language was approved. Counsel for the appellee contends that the charge was properly refused since it did not attempt to define intervening cause and make the proper application. A special charge is not intended to cover every principle of or all the law of the case. Hunter v. Brumby, 131 Oh St 443, 3 N. E. (2d) 353; Makranczy v. Gelfand, Admr., 109 Oh St 325, 338, 142 N. E. 688; Swing v. Rose, 75 Oh St 355, 369, 79 N. E. 757; Curlis v. Brown, 9 Oh Ap 19, 22; see Vol. 39 O. Jur. page 1034, Section 315. In this charge the court only attempted to define proximate cause. Since the charge was a correct statement of the law the refusal of the court to give it constituted reversible error.

We find no error committed in refusing to withdraw from the jury allegations contained in plaintiff’s petition regarding the speed of defendant’s automobile as claimed in his ninth assignment of error, since there was some evidence introduced from which a reasonable inference may be drawn. Whether the speed of defendant’s automobile was greater than was reasonable or proper under the circumstances was a question to be submitted to the jury. Swaboda v. Brown, 129 Oh St 512, 196 N. E. 274. There was no issue made on the last clear chance either in the pleadings or evidence and no charge given with reference thereto.

We find no prejudicial error in the general charge as claimed by appellant in his tenth assignment of error.

Counsel for the appellant for his fourteenth assignment of error claims that other errors of law occurred at the trial, but no other errors are pointed out or discussed by appellant in his brief, and the Court finds no other errors existing.

The Court finds that reversible error was committed in refusing to give special instruction before argument requested by defendant, and that the verdict and judgment are against, the manifest weight of the evidence. Such error standing alone would require the case to be remanded for new trial. But on the determinative issue of agency reversible error was also committed in overruling appellant’s motion for directed verdict at the close of all the testimony, and in overruling appellant’s motion for judgment non obstante veredicto. Such ■errors are based on a failure of proof on a vital issue in the case and as a matter of law the defendant was entitled to judgment in his favor. In such case the reviewing Court may enter the proper judgment. Accordingly, judgment is entered for defendant.

MILLER, PJ, and HORNBECK, J, concur.

ON MOTION FOR REHEARING

No. 2125. Decided March 8, 1951.

OPINION

By WISEMAN, J:

Submitted on motion for rehearing. There is no rule controlling applications for rehearing but this Court has followed the practice of considering such applications if seasonably filed and where the questions raised merit consideration.

Plaintiff-appellee contends that a presumption of agency arose by reason of the fact that the automobile driven by Fink at the time of the collision carried dealer’s license plates of the defendant and that therefore a jury question was presented. In support of this proposition plaintiff-appellee cites Fredericks v. B. L. Williams Co., 68 Oh Ap 217, 40 N. E. (2d) 162, the second syllabus of which is as follows:

“The presence of an automobile dealer’s license plates on an automobile being driven by the sales manager of such dealer ■creates a rebuttable presumption that the automobile is toeing driven under the authority of and upon the business ■of the dealer.”

On page 223 the court cites an unreported case of HartenBrooks Co. v. Gayer (Sixth Appellate District) supporting this proposition. The court also cites Vols: 1-2 Huddy on Automobiles (9 Ed.), 394, Section 180, to the effect that the rule stated above is the general rule. An examination of Huddy does not support the claim that the rule stated is regarded as the general rule. On page 224 the court states that: “In Ohio, the question of agency such as here presented must be governed by the rule of respondeat superior.” The court then concludes:

“Under Ohio statutes and decisions and in most other jurisdictions, the most that can be said under the facts here shown is that a rebuttable presumption arose that Cozad was operating the car owned by the company and operating it on company business; and that the evidence offered in rebutting the presumption thus arising presented a jury question. Ball v. Hail, 196 Ark., 491, 118 S. W. (2d), 668.”’

In the Fredericks case the ownership of the automobile was in dispute. Evidence as to dealer’s license plates was relevant in establishing ownership. The presumption of agency could only spring from the fact of ownership. In the Fredericks case the court held that the fact of the use of dealer’s license plates raised a rebuttable presumption. Both in this opinion and in the original opinion this Court recognizes this proposition of law. However, in the instant case ownership of the automobile was not in dispute. The defendant admitted ownership. The evidence showing that the automobile involved in the collision had upon it dealer’s license plates of the defendant loses some of its probative effect. In our principal opinion we discussed the inferences which may be drawn from the fact of ownership of the automobile and the effect of the rebutting evidence. We conclude that on the basis of the whole record reasonable minds could not come to different conclusions with respect to the issue of agency.

Defendant’s liability rests upon the application of the rule of respondeat superior. The rule of respondeat superior arises out of the relationship of the parties — the relationship of master and servant or of principal and agent. In order to permit recovery it must be shown that the relation between the defendant and Fink was that of master and servant or of principal and agent at the time of the collision. The test of a master’s liability is not whether a given act was done •during the existence of the servant’s employment, but whether such act was done by the servant while engaged in the service-of and while acting for the master in the prosecution of the: master’s business. Vol. 26, O. Jur., pp 620-628.

In the Fredericks case the court cites in support of the-proposition adhered to the case of Ball v. Hail, 196 Ark. 491, 118 S. W. (2d) 668. That case did not involve the use of dealer’s license plates. It is authority for the proposition that a rebuttable presumption arose from the fact that the salesman was driving the dealer’s automobile at the time of the accident and that the salesman was acting for the dealer. The court held that where the only rebutting testimony on the subject was given by the dealer and the salesman the question whether the salesman was acting within the scope of his employment at the time of the accident was a jury question. The court in that case referred to Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. (2d) 1010, among other cases, in support of this proposition. That case is authority for the proposition that “where evidence refuting presumption that employee was acting within employment when driving employer’s automobile is contradicted, question is for jury, but, where uncontradicted, question is for court.” That case lays down a proposition of law which is in accord with our principal opinion. In a later Arkansas case, Brooks v. Hale Chevrolet Co., Inc., 198 Ark. 17, 127 S. W. (2d) 135, the court, on page 138, held:

“(2) It is true that if an automobile causing an accident belongs to the defendant and is being operated at the time of the accident by one of the regular employees of the defendant, there is a reasonable inference that at such time the employee was acting within the scope of his employment and in furtherance of the master’s business.
“But this is only a prima facie presumption or inference —a presumption or inference deducible from the naked facts of physical ownership, contract of employment, and permissive or directed operation.
“(3) When, as in the instant case, it is shown by undisputed evidence that five young people met at half past ten o’clock on Saturday night, drove from one to two hours without important purpose, then directed their course to a night club and were well on their way to that objective when the accident occurred, presumption of pursuit of the master’s business must give way to the obvious facts.”

In Ford and Son Sanitary Co. v. Ransom, 210 S. W. (2d) 508, (decided by the Supreme Court of Arkansas, April 26, 1948) the court discusses the Mullins case and on page 509 again lays down the proposition: “The inference or presumption of fact, however, may be refuted or overcome by evidence adduced by the defendant during the trial. Where the evi•dence on this point is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted it becomes a question for the court.”

The question here presented is discussed in Vol. 5 A. L. R. (2d series) beginning at page 199. The text is as follows:

“That the presumption or the inference of an owner’s consent to another’s operation of his automobile, or the agency of such operator, arising from proof of ownership, or proof of ownership coupled with proof that the driver was in the general employment of the owner, is rebuttable and will be overcome by proper countervailing evidence, is universally held or conceded.
* * * * '
“The great weight of authority recognizes that the presumption from proof of ownership of an automobile alone, or coupled with proof that the driver was in the general employment of the owner, that at the time of the accident the car was being driven by the driver in the business of the owner within the scope of the driver’s employment, may and will be overcome as a matter of law and the plaintiff’s prima facie case will fail, with the procedural consequence of a directed verdict or binding instructions for the defendant, or a judgment non obstante veredicto for the defendant, or a judgment of nonsuit against the plaintiff, upon clear, direct, undisputed, positive, convincing, uncontroverted, unequivocal, and credible, and, according to some cases, substantial, countervailing evidence showing without contradiction, improbability, and with certainty not susceptible of more than one inference by reasonable men, that the drver was not in the employ of the owner or that he was not at the time of the accident acting in the business of the owner or within the scope of his employment, but in his own business or for his own pleasure having no connection with the business of the owner; or that the automobile was not in the possession of the owner or his servant, but in the possession of someone else, not the servant of the owner, and the circumstances do not support a reasonable inference to the contrary.” (Emphasis ours.)

It is contended in this case by the plaintiff-appellee that the testimony given by the defendant and Fink, although uncontradicted and undisputed, was not of sufficient weight to overcome the presumption of agency which arose by reason of the fact that the defendant was the owner of the automobile involved in the collision. In Vol. 5, A. L. R. (2d Series) page 203, we find this statement:

“There is some conflict in the decisions as to the degree and character of proof necessary to refute or overcome such presumption. By some authorities it is held that the presumption disappears when met by positive proof or substantial proof or by evidence which the jury has the right to believe or by the uncontradicted testimony of the defendant. Others hold that the presumption is not overcome by the testimony of the defendant alone or by the testimony of interested witnesses or by evidence which the jury has the right to disbelieve. The authorities are, however, in almost complete agreement that the presumption is conclusively overcome by clear, positive, and undisputed evidence.”

This was the view taken by this court in its principal opinion. This Court, in Arthurs v. Citizens’ Coal Co., 37 Abs 438, 47 N. E. (2d) 654, held:

“The burden of proof remains upon plaintiff at all times, and where the defendant presents clear and conclusive testimony to the contrary and plaintiff goes no farther, the latter must fail in his proof.”

The Court, on page 441, states:

“The strength of the prima facie rule necessarily depends on the circumstances and evidence in each particular case.
“It disappears when surrounding circumstances are such that its recognition is unreasonable. * *
“And if so overcome by proof that the automobile was not in the owner’s possession or that of his servant, or was not being used by the servant within the scope of his employment, the defendant is entitled to a directed verdict in his favor. * *

The Court, on page 441, concludes as follows:

“So the fact that, from the ownership of an automobile being operated upon the highway, an inference arises that it was being operated by or on behalf of the owner of the car, and under circumstances which would render him liable for injuries caused by it, does not require the court to submit the question of the owner’s liability to the jury, if there is undisputed and uncontroverted evidence that at the time of the injury the driver of the car was not engaged in the employer’s business.”

We also refer to a most exhaustive opinion on this whole question by the Supreme Court of the State of Washington in 1942 under the title of Bradley v. S. L. Savidge, Inc., 123 P. (2d) 780. The eleventh paragraph of the syllabus is as follows:

“The presumption that driver was agent of owner of automobile involved in collision, and was acting within scope of his authority, can be overcome by competent evidence from either interested or disinterested witnesses, provided their testimony is uncontradicted, unimpeached, clear and convincing, in which event the presumption disappears entirely, casting on plaintiff the burden of establishing by preponderance of the evidence the fact that, at time of accident, driver of automobile was agent of defendant and was acting within scope of his authority, and if plaintiff failed in such respect, the trial court is required, on motion of defendant, to direct verdict in defendant’s favor.”

In the opinion the court reviews innumerable opinions from courts of almost all the States in the Union, and cases arising in the Federal jurisdiction. The only Ohio case cited by the court in support of the proposition therein announced is White Oak Coal Co. v. Rivoux, 88 Oh St 18, 102 N. E. 302, 46 L. R. A. N. S. 1091, Ann. Cas. 1914 C., 1082. On page 795 the court concludes:

“After a careful study of our cases and those from other jurisdictions to which we have called attention, we conclude that there is no good reason for adhering to the rule that the presumption in cases of this nature may only be overcome by disinterested testimony, but every good reason is demonstrated in the authorities cited that cases of this character should be subject to the same rules governing other presumptions or inferences of fact.
“Litigants are entitled to have their cases decided upon the evidence presented in accordance with general rules. A litigant should not be penalized because the truth comes from himself or from his employees. Every witness is presumed to tell the truth and his evidence should be accorded that presumption.”

The court on page 795 departs from former rulings and holds:

“Departing, however, from the rule as heretofore declared in a number of our own cases, to the effect that such presumption may be overcome only by disinterested testimony, and following what we conceive to be the correct rule as declared by the great weight of authority, including any decisions of this court, we now hold that the presumption may be overcome by competent evidence' from either interested or disinterested witnesses, provided that their testimony is uncontradicted, unimpeached, clear and convincing. When evidence of that degree and character is submitted by the defendant, the presumption disappears entirely from the case, casting upon the plaintiff the burden of producing competent evidence to meet the evidence of the defendant, and of establishing by preponderance of the evidence the fact that, at the time of the accident, the driver of the offending automobile was the agent of the owner and was acting within the scope of his authority. If the plaintiff fails in that respect, the court is required, upon motion of the defendant, to direct a verdict in the latter’s favor. The pronouncement of this rule requires and results in the overruling of those cases, hereinbefore cited, which have proceeded on a contrary view.”

We adhere to the rule laid down in the principal opinion that the evidence introduced by the defendant on the question of agency was sufficient to overcome the presumption which arose by reason of defendant’s ownership of the automobile involved in the collision, and that on the state of the whole record reasonable minds could not arrive at different conclusions on the issue of agency. The trial court should have sustained the motion to direct the verdict in favor of the defendant.

Application for rehearing overruled.

HORNBECK, PJ, and MILLER, J, concur.

ON MOTION FOR AN ORDER

No. 2125. Decided March 22, 1951.

OPINION

By THE COURT:

Submitted on motion of defendant-appellant for an order releasing the supersedeas bond heretofore filed.

The supersedeas bond filed to stay execution under the provisions of §§12223-9 and 12223-14 GC, is effective until all remedies of the adverse party are exhausted and the appeal is finally determined.

This Court, in a journal entry filed March 17, 1951, reversed a judgment in favor of plaintiff-appellee. The appellee may secure a review of the judgment by the Supreme Court. If this Court should release the bond at this stage of the proceedings and if the Supreme Court should reverse the judgment of this Court, the appellee would then be without remedy on the bond. Until there is a “final determination” of the rights of the parties in this appeal the bond will not be released.

Motion overruled.

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


author: By KOVACHY, J:

text:
    MAGIC FOAM SALES CORP., Plaintiff, v. MYSTIC FOAM CORP., Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 595752.
    Decided November 14, 1950.

      John W. Meyer of the law firm of Hyde, Meyer, Baldwin & Dorann, Cleveland, Zugelter & Zugelter, Cincinnati, for plaintiff.
    Raymond L. Davis of the law firm of Krueger, Gorman & Davis, Cleveland, for defendant.
   OPINION

By KOVACHY, J:

The Magic Foam Sales Corporation, an Ohio corporation, located at Cincinnati, claims an infringement of its common law trademark “Magic Foam” by the Mystic Foam Corporation, an Ohio corporation of Cleveland.

Magic Foam, Inc., an immediate predecessor of plaintiff, was incorporated November 14, 1932, at which time it took over the upholstery cleaner business of a partnership and acquired at the same time the latter’s trade name “Magic Foam.” The plaintiff was organized on or about January 17, 1935.

The defendant was organized on or about March 8, 1934. Its immediate predecessor was a partnership which commenced using the trade-mark “Mystic Foam” around December 15, 1933, and obtained a United States registered trade-mark for it on October 8, 1935.

There is no question here that the public use of the expresión “Magic Foam” antedates that of “Mystic Foam.”

Plaintiff claims that the term “Mystic Foam” is confusingly similar to that of “Magic Foam” and asks that the defendant be enjoined from using the term “Mystic Foam” in its corporate name, as a trade-mark or on any of its labels or literature and that an accounting for profits and damages be awarded it against the defendant.

In the trial of this cause defendant made motions for judgment at the close of plaintiff’s case, in the midst of the presentation of its own case and at the close of all the evidence. These motions were taken under advisement by the Court. Inasmuch as the Court now has the benefit of the evidence presented by both sides in the cause it desires to make its rulings on the basis of all the evidence before it.

One of the grounds on which defendant bases its motions is that the plaintiff does not come into court with clean hands. In its ruling herein the Court gives this claim its main consideration.

Labels (Defendant’s Exhibits 24 and 25) used by the plaintiff on its product carry the following expressions:

1. “Patent Pending.”

2. “Restores the natural oils usually lost with ordinary cleaners.”

3. “Won’t burn or explode.”

4. “Exterminates and acts as a protective agent against moths.”

5. “The sterilization action is fatal to disease and germs lurking in the fabric.”

6. “It does not harm the hands.”

Its advertisements carry the statement — “Magic Foam, the original Foam type cleaner.” (Defendant’s Exhibit 82)

Item No. 1 — Patent Pending — has been printed on the labels since the inception of the “Magic Foam” business in 1932 despite the fact that no patent had ever been applied for. It leads purchasers to believe that “Magic Foam” is made up of a compound which is novel and unique and possesses qualities which are unusual and unpossessed by other products on the market. It, also, deters others from selling a like product for fear of infringing upon the monopoly about to be granted. The use of this term on labels is a clear fraud upon the public and a badge of dishonesty in the conductance of plaintiff’s business.

In 11 House of Lords, page 542 (Leather Cloth Co. v. American Leather Cloth Co.) Lord Kingsdown says the following:

“If a trade mark represents an article as protected by a patent, when in fact it is not so protected, it seems to me that such a statement prima facie amounts to a misrepresentation of an important fact, which would disentitle the owner of the trade mark to relief in a Court of equity against anyone who pirated it.”

The Federal Circuit Court of Illinois, in Preservaline Mfg. Co. v. Haller Chemical Co. 118 Fed. Rep. 103, has the following to say in its syllabus:

“The use by the manufacturer of an article, for several years after a patent therefor had expired, of advertising circulars containing the word ‘patented’, or statements clearly implying that it was protected by a patent, which circulars were inclosed in the packages in which the article was sold, is such a fraud as will preclude relief in equity against unfair competition, although no such statements were made in connection with complainant’s trade-mark, or on the packages themselves; it being impossible for the court to determine to what extent the value of complainant’s business, which it is asked to protect, is due to such fraudulent action.”

Item No. 2■ — Restores the natural oils usually lost with ordinary cleaners — . There is conclusive evidence that the formula used by “Magic Foam” contains nothing to restore any natural oil that may have been lost by the fabric.

Item No. 3 — Won’t burn or explode — . A quart can of Magic Foam when opened in the court room and a lighted match held over it produced a flame lasting a few seconds. Any one familiar with chemistry knows that ether burns and has a low boiling point.

Webster’s New International Dictionary has the following to say of Ether:

“A light, volatile, mobile, highly inflamable liquid — boiling point 94.3 degree F.”

The ether in this product would boil on a hot summer day and readily burn if near a fire or a flame. How then can a statement that it “won’t burn” be honestly made in respect of it? Moreover, the undisputed evidence is that “Magic Foam” because of its ether content is a dangerous solution and not acceptable as a fire-proof product.

Item No. 4 — Exterminates and acts as a protective agent against moths — . The evidence is that such statement is untrue and false.

Item No. 5 — The sterilization action is fatal to disease and germs lurking in the fabric. —Such statement likewise is untrue and false.

Item No. 6 — It does not harm the hands. —The testimony is uncontradieted that the ammonia and ether contained in this product “tenderizes” the hands of all women.

The representations delineated above are all untrue and false. They, moreover, state facts which are important and material because they enhance the value of the product to the purchaser. These misrepresentations about “Magic Foam” have been made to the public for 17 years. It is most difficult to determine the business attracted to the plaintiff or the harm inflicted upon the buying public by them. Certain it is that both are quite considerable.

The statement — Magic Foam, the original Foam type cleaner —the Court considers in the category of mere business puffing. As such it does not create the impression that “Magic Foam” is a superior product because of it to the buying public.

Equity restrains a business house from infringing upon the trade-mark of another to prevent the public from being misled. It decries the public being deceived by representations which give the goods a character and reputation which they do not possess or deserve so that the remedy granted is not based alone upon the property acquired by one owning symbols and names as trade marks but also on the broad principle that it will not permit fraud to be practiced upon the public nor upon private individuals.

See Pomeroy’s Equity Jurisprudence, 5th edition. Volume 3 Section 934 f, and Volume 4, Section 1354.

Should a Court of Equity then entertain a complaint of deceit and fraud against another in the use of a trade-mark confusingly similar when the complainant itself is guilty of misrepresentations as to material facts in the business in which the trade-mark claimed to be infringed is used?

The Courts of England and of this country refuse their assistance in every case involving the misrepresentation of a material fact in the conductance of the business of the complaining party, and under the decisions it is immaterial whether the misrepresentation is one contained in the trademark itself or on the labels or general advertising material in general use.

In the case of Leather Cloth Company, Limited v. The American Leather Cloth Company, Limited, tried before Lord Chancellor Lord Westbury, 4 De Gex, Jones & Smith’s Reports, page 136, a paragraph of the syllabus reads as follows:

“Where the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark or in the business connected with it be himself guilty of any false or misleading representation.”

The same case went before the House of Lords, 11 House of Lords, page 523, and contains the followwing statement in its syllabus:

“Where an advertisement, or trade mark, states that which is not true, it cannot be made the subject of protection by the Court of Chancery.”

An old New York case which even precedes the above, 13 Howard’s Practice Reports, page 385, reads as follows in part of its syllabus:

“If a plaintiff comes into a court of equity to claim relief against the fraud of others, he must be free himself from the imputation. If the sales of an article made by the plaintiff are affected, or sought to be, by misrepresentation and falsehood, he cannot be listened to when he complains that, by the fraudulent rivalry of others, his own fraudulent profits are diminished. An exclusive privilege for deceiving the public, is not one that a court of equity can be required to aid or sanction. (This decision on this point, followed that in Partridge Agt. Menck 1, Howard’s Court of Appeals Cases 547.)”

' The Supreme Court of Tennessee in C. F. Simmons Medicine Co. v. Mansfield Drug Co. 93 Tenn. Rep. 84, reads as follows:

“It is a maxim of Courts of Equity, applicable in the consideration of cases brought to prevent the unlawful infringement of trade-marks or unfair competition in business, that the complainant seeking the Court’s interposition in his behalf must come with clean hands; and that he will be repelled at the threshhold of the Court, if it appears from the case made by him, or by his adversary, that he has himself been guilty of unconscientious, inequitable, or immoral conduct, in and about the same matters whereof he complains of his adversary, or if his claim to relief grows out of, or depends upon, or is inseparably connected with his own prior fraud. (Post, p. 94.)”

In a case before the Supreme Court of Pennsylvania, Palmer v. Harris, 60 Penn. State Reports, 156, paragraphs one and three of the syllabus reads as follows:

“1. The ground upon which equity restrains the counterfeiting of trade-marks is the promotion of honesty and fair dealing. * * *.”
“3. Equity will not extend its protection to one whose case is not founded in truth.”

In the case of Bear Lithia Springs Co. v. Great Bear Spring Company, 71 New Jersey Equity Reports, page 595, paragraph 3:

“If the commodity which the complainant is selling under a trade name, trade mark or symbol, is offered to the public under a misrepresentation or falsehood, he has no standing in a court of equity, nor can he successfully call upon that court to aid him in preserving to him the right to deceive the public without interruption.”

The Supreme Court of the United States in Manhattan Medicine Co. v. Wood, 108 U. S. Reports, page 224, had the following to say:

“When the owner of the trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public, it is essential that the plaintiff should not in his trade-mark, or in the business connected with it, be himself guilty of any false or misleading representation; for if the plaintiff makes any material false statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity.”

Also in Worden v. California Fig Syrup Company, 187 U. S. Reports, page 516:

“When the owner of a trade-mark applies for an injunction to restrain the defendant from injuring his property by making false representations to the public it is essential that the plaintiff should not in his trade mark or in his advertisements and business, be himself guilty of any false or misleading representation, and if he makes any material false statement in connection with the property which he seeks to protect, he loses his right to claim the assistance of a court of equity; and where any symbol or label claimed as a trade mark is so constructed or worded as to make or contain a distinct material assertion which is false, no property can be claimed on it, or, in other words, the right to the exclusive use of it cannot be maintained.”

Ohio follows strictly in line with the above pronouncements: 39 O. Jur., page 423:

* * It is immaterial whether the representation is contained in the trade mark or made in the conduct of the business connected with it; if the plaintiff makes any materially false or misleading statement in connection with the property he seeks to protect, he loses, and very justly, his right to claim the assistance of a court of equity.”

In the case of Buckland, et al v. Rice, et al., 40 Oh St, page 526:

“Where a trade-mark contains a material misleading representation a court of equity will not protect it.”

Plaintiff herein claims that it had purged itself of unclean hands in respect to Items No. 2, No. 4, and No. 5, by the printing of a new label, Plaintiff’s Exhibit 136. The evidence is clear, however, that at the time this action was commenced labels exemplified by Defendant’s Exhibits 24 and 25 were in use, and the law seems well established that courts of equity in considering the question of plaintiffs coming into court with unclean hands are guided by the state of the matter at the time suit is commenced.

Circuit Court, N.D.California, in the Alaska Packers’ Association v. Alaska Imp. Co., 60 Fed. Reports, page 103, syllabus, paragraph 2, held, as follows:

“Correcting false statements after the' suit is filed, by attaching an additional explanatory label to the goods then being sold, does not help the case of one who, because of such false statements, had no right to relief at the time the suit was filed.”

However that may be, the claimed new label likewise must be proscribed. It continues to carry Items No. 1, No. 3 and No. 6 which are untrue and false and relate to material facts, as indicated above.

The defendant herein introduced hundreds of exhibits showing the extent of its business in the United States, South Africa, Canada, Alaska, Newfoundland, Brazil, Norway, Australia, Iran, Belgium, Egypt, China, Great Britain, Holland, Denmark and Mexico. Its trade-mark is registered in many foreign countries. From 1935 to 1948 it did $2,316,469 worth of business and spent close to $1,000,000 in advertising and promoting “Mystic Foam.”

Where was the plaintiff during these many years? Why did it wait so long to bring this action if it felt that “Mystic Foam” was confusingly similar to “Magic Foam” and an infringement upon it? Thirteen years is a long period of time in the business world yet during all those years plaintiff slept on its rights and permitted an aggressive, imaginative and resourceful organization to develop and establish a successful and extensive business throughout the United States and in many foreign lands, and now when thoroughly outstripped In the competition for the upholstery cleaner trade it brings this action to throttle its successful rival and garner unto itself the fruits of its labor during those years.

While from the stand-point of the plaintiff such consummation is devoutly to be desired, from the stand-point of justice such consummation cannot be had under the facts in this case.

Plaintiff by its dishonest methods of conducting its business does not come into this Court of Equity with clean hands and is, therefore, barred from any relief whatsoever in the premises.

Decree for the Defendant. A Journal entry may be drawn accordingly with plaintiff’s exceptions noted.


author: By HUNSICKER, J:

text:
    DIVISION OF AID FOR THE AGED etc., Plaintiff-Appellee, v. BRESKVAR, Admx., etc., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21694.
    Decided February 27, 1950.
    H. S. Duffy, J. A. Robenalt, Cleveland, for plaintiff-appellee.
    Leopold Kushlan, Cleveland, for defendant-appellant.
    (GUERNSEY, PJ, of 3rd District; HUNSICKER and DOYLE, JJ, of the 9th District sitting by designation in the 8th District.)
   OPINION

By HUNSICKER, J:

This is an appeal on questions of law. In its petition upon which the judgment appealed from was rendered, the plaintiff predicates its right of recovery upon the following state of facts;

During the lifetime of one Frank Pangersic, deceased, he had applied for and obtained aid for the aged from January, 1939 to March, 1945. The amount of money paid by the Division of Aid for the Aged to Frank Pangersic, during his lifetime, was $1,740.10. Frank Pangersic died before Frances, his wife. Upon the death of Frances Pangersic a claim was presented by the Division of Aid for the Aged to the appellant herein, Frances Breskvar, as Executrix of the estate of said Frances Pangersic, deceased, for the sum of money which they (The Division of Aid for the Aged), had paid to the. husband, Frank Pangersic. This claim for the money so paid to Frank was rejected and the instant action was thereafter commenced against the estate of Frances Pangersic, deceased, by the appellee, Division of Aid for the Aged, to recover such sum of money.

To this petition Frances Breskvar, as Executrix of the estate of Francis Pangersic, deceased, filed a demurrer claiming that the petition does not state facts which show a cause of action.

The Common Pleas Court of Cuyahoga County overruled such demurrer and, the appellant not desiring to plead further, trial was had and judgment was rendered against the appellant as such Executrix of the estate of Frances Pangersic, deceased, for the sum of $1,740.10. It is from such judgment that this appeal on questions of law is before this court.

Nowhere in the petition is it claimed that Frances Pangersic in her lifetime ever received any award from the Division of Aid for the Aged, nor is it claimed that she agreed to be bound for the repayment of the sums paid to her husband.

If any liability arises herein it does so by reason of the operation of §1357-7 GC as amended effective September 26, 1947, which reads as follows:

“Preferred claims against estate: Upon the death of a person, the total amount of aid paid to said person and to his or her spouse under this act, shall be a preferred claim against the estate of such deceased person, having priority and preference over all unsecured claims except the bill of the funeral director not exceeding two hundred dollars, the expense of the last sickness and those of administration and the allowance made to the widow and children for their support for twelve months.”

It is claimed that liability herein occurs by reason of the following phrase in such section: “Or to his spouse or either or both of them.” The legislature by the inclusion of this language in this section, sought to fasten upon the estate of a deceased recipient of aid for the aged, and upon the estate of his deceased spouse any aid paid to either, separately. It sought to make liable an estate of a deceased person where the person himself would not be liable.

The State of Ohio certainly has the right to determine the conditions under which it will furnish financial aid to its needy citizens. However, it must be remembered that the money paid to Frank Pangersic was paid during the period from January, 1939 to March, 1945; that the amendment of §1359-7 GC became effective September 26, 1947 and that this claim against the estate of his wife was made in the year 1949.

While there may be other reasons for a reversal of this judgment, the judgment will be reversed on the following specific ground, the statute does not operate retroactively ta make liable an estate of a deceased spouse of a recipient of aid where such aid was paid prior to the effective date of the amendment to §1359-7 GC (effective Sept. 26, 1947).

Judgment reversed and cause remanded to the common pleas court with instructions to sustain the demurrer.

GUERNSEY, PJ, DOYLE, J, concur.


author: By PHILLIPS, PJ.

text:
    DIXON, Plaintiff-Appellee, v. KEREST et, Defendant-Appellant, KREPS Co-Defendant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3350.
    Decided March 22, 1950.
    John Ruffalo, Jr., Youngstown, for plaintiff-appellee.
    J. V. Murphy, Youngstown, for defendant-appellant.
    Oscar Stephens, Youngstown, for defendant.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff will be called plaintiff, and defendants will be designated by their surnames.

East Federal and Basin Streets are duly dedicated and accepted highways, which extend respectively in general easterly and westerly and northerly and southerly directions within the corporate limits and closely built up sections of Youngstown, Ohio. Traffic moving over and along those highways is controlled and governed by an automatic electric traffic signal, erected by the Police Department of the City of Youngstown.

About 7:30 A. M. on July 13, 1947, plaintiff was riding, as a paid passenger, in a taxicab owned by defendant Kerest, and then being operated by his servant and employee in an easterly direction on East Federal Street. The automobiles of the parties collided each with the other at such intersection, as the result of which plaintiff sustained personal injuries.

Plaintiff sued defendants in the court of common pleas to. .recover damages for such injuries. The jury returned a verdict for defendant Kreps at the close of plaintiff’s evidence upon direction of the trial judge. The trial judge overruled the motion of defendant Kerest for a verdict to be directed in his favor made at the close of all the evidence. The jury, .after deliberation, returned a verdict for plaintiff for $1250.00 against defendant, John P. Kerest, d. b. a. The Bell Taxicab Company. Subsequently the trial judge duly entered judgment upon the verdicts of the jury. From that judgment defendant Kerest appealed to this court on questions of law and fact.

The appeal was not filed properly as one on law and fact. Accordingly the words “and fact” were stricken from the notice of appeal as filed, and it appearing that a bill of exceptions was duly filed the appeal was retained, argued, submitted, and will be determined as one on questions of law.

Though filing his appeal on questions of law and fact, by assigned grounds of error defendant Kerest contends “that the court of common pleas erred in overruling appellant’s motion for a directed verdict made at the close of plaintiff’s testimony; in sustaining the motion of Frank Kreps at the close of plaintiff’s testimony, in ordering a directed verdict by the jury, dismissing plaintiff’s claim against the defendant, Frank Kreps; in overruling appellant’s motion for a new trial;” and that “the verdict of the jury was so manifestly against the weight of the evidence as to indicate prejudice on the part .of the jury against this appellant.”

Plaintiff testified that when the automobile in which she was riding was fifty feet west of the traffic light at the intersection of East Federal Street the taxicab in which she was riding had the right of way; that at that time she took her eyes off such signal light and reached in her purse for a cigarette; and that she remembered nothing thereafter until she woke in a hospital sometime later.

Defendant Kerest introduced evidence in an attempt to support his contention that at the time of the collision, to which reference is made, his taxicab was being operated over and along East Federal Street at a reasonable rate of speed, in a careful, safe and lawful manner; that it entered the intersection of East Federal and Basin Streets at a time when traffic moving thereon and thereover had right of way over traffic moving over and along Basin Street; that at that time defendant Kreps was operating an automobile at a high, dangerous, and excessive rate of speed on Basin Street; and •that his automobile entered the intersection of East Federal and Basin Streets at a time when traffic moving over and along East Federal Street had the right of way over traffic moving over and along Basin Street.

A careful consideration of the evidence submitted in the trial court in plaintiff’s case leads us to conclude that the trial judge did not err to the prejudice of defendant Kerest when he directed the jury to return a verdict in favor of defendant Kreps at the close of plaintiff's testimony.

Defendant Kerest has no right to complain of a judgment in favor of defendant Kreps and against plaintiff, being unaffected thereby. The issues between plaintiff and defendant Kerest were'tried without prejudicial error, and this court does not find the verdict of the jury to be against the manifest weight of the evidence.

“Plaintiff in error cannot complain because verdict was returned in favor of a joint tort feasor, with whom he was sued jointly, and petition in error will be dismissed as to such co-defendant on the latter’s motion.” Counter v. Tiedman, 29 Oh Ap 489.

In our opinion the direction of the verdict by the trial judge in the case we review does not make the case of Counter v. Tiedman, supra, inapplicable as authority in support of our conclusion.

We conclude that the trial judge did not err to the prejudice of defendant Kerest in overruling his motion for a new trial.

Appellant’s counsel has failed to call our attention to “other errors apparent on the face of the record” as alleged as a ground of error; or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

NICHOLS, J, GRIFFITH, J, concurs in judgment.


author: By BENNETT, J.

text:
    COLLINS, Sr., Plaintiff-Appellant, v. WARREN (City), Defendant-Appellee.
    Ohio Appeals, Seventh District, Trumbull County.
    No. 947.
   OPINION

By BENNETT, J.

This is a damage action brought by the plaintiff against the defendant because of personal injuries alleged to have been caused by a defective sidewalk on Logan Avenue, Warren. The defect, as shown by pictures introduced in evidence, was a bad hole in the sidewalk where a driveway crossed it. The street ran north and south and the hole on the west side of the walk was about five feet wide and on the east side was some three feet wide. The hole was some six inches deep. Some broken portions of the original walk were in the hole at the time of the accident. Other portions of the original stone had been moved out of the hole. The plaintiff testified that this condition in the sidewalk had existed some two and one-half years, that he had lived on that street during all that period and had probably passed over the bad spot two or three times a week during the period. The accident occurred between eight and nine o’clock P. M. on April 5, 1937. The plaintiff had been further down the street at a grocery store on the same side of the street and was returning home with a basket of groceries. It had been drizzling and was dark at the time.

The plaintiff’s story of what happened was as follows:

“Well, naturally I had to take the groceries home and I was walking along very carefully as I always have walked and when I came to this point the light shone there was water in a hole there and I thought I would test out this stone that laid in the center of that hole, which was away below the center of the sidewalk, and I stepped on with my left foot to test it and it seemed to be all right, but when I stepped down on it it simply crashed into the mud and threw me.”

The street car rails were being removed from the center of the street and the street was impassible for vehicular traffic except a lane on either side between the curb and the torn up portion which was wide enough for a single car to pass.

The plaintiff himself was his only witness and when he rested his case the court directed a verdict for the defendant on the authority of Schaefler v. Sandusky, 33 Oh St, 246, Conneaut v. Naef, 54 Oh St, 529, and Construction Company v. Sorna, 122 Oh St, 265.

The plaintiff has appealed on questions of law and contends that the court should not have directed the verdict but should have allowed the matter of the plaintiff’s contributory negligence to go to the jury.

We believe that there was a question for the jury upon this testimony, as to whether the plaintiff used the care of the reasonably prudent man under the circumstances and as to whether, phrased in terms of voluntarily assuming a risk, it was an apparent risk or an entirely latent one.

The second syllabus of the Sorna case reads as follows:

“A pedestrian, proceeding with due care as to known defects, who sustains an injury while using a street crossing under course of improvement, the injury being caused not by the known, open and apparent defects, but by a latent, hidden defect in such street crossing, of which he had no knowledge and which could not be detected by him by ordinary and reasonable care, is not guilty of contributory negligence as a matter of law.”

See also the syllabus of Lorain v. Griffith, 50 Oh Ap 505, which reads as follows:

“Where a person who uses a crosswalk within a municipality knows, or is otherwise charged with knowing, not only in a general way of defects in the crosswalk, but also that it is dangerous to use it in the condition in which it is, he assumes the risk of injury by such user; but where such person, although knowing that the crosswalk is in a defective condition, does not know, and is not otherwise charged with knowing, that it is dangerous to use it in the condition in which it is, he does not, as a matter of law, assume the risk of injury by such user.”

We believe that the distinction between the present case and those of ice and snow cited by the defendant is well made by a consideration of two cases found in the same bound volume of the Weekly Law Bulletin, Vol. 33-34. The first is the case of Cleveland v. Stofer, a summary of which is found in Vol. 33 at page 227. The Circuit Court in that case affirmed a judgment against the City for injuries received by the plaintiff in falling upon an iron plate over a sidewalk gutter. The plate had originally been corrugated to prevent slipping but by use had become smooth and rounded. On April 30, 1895 the Supreme Court reversed the case, 52 Oh St, 684, “for the reason that the evidence shows that at and before the time of the accident the defendant in error had full knowledge of the crossing which he charges to have been dangerous.” The other case was that of Toledo v. Center, 34 Bull., 213. The Circuit Court in that case affirmed a judgment for the plaintiff who had stepped on a brick in a depression in the sidewalk caused by water flowing across the walk and washing sand from under the bricks. The physical situation was therefore very similar to that involved in the case at bar.

Six months after it had decided the Cleveland case, the Supreme Court affirmed the judgment for the plaintiff in the Toledo case, 53 Oh St, 659, although two judges dissented. From the report in the Bulletin it is apparent that counsel on both sides argued that case along the same general lines as counsel have argued the case at bar.

The substantial difference between the two cases must have been that the slippery condition was obvious to the plaintiff in the one case but the fact that the sand had been washed away and that the brick would turn was not obvious to the plaintiff in the other case.

In the present case it seems to the writer that the plaintiff may have overreached himself by the testimony that he first tried the stone and then went forward. Unless it were shown that the ground to the right of the sidewalk was impassible it seems to me that he may have been guilty of assumption of risk, in distinction to contributory negligence. To test the stone and then proceed might well be due care, and certainly in my opinion would present a jury question as to due care. But to see something which seemed so dangerous as to need testing and then to have elected to proceed by that path instead of to the right of the sidewalk may well have been assumption of risk in one of the relatively few situations where the facts might constitute the voluntary assuming of a risk and not be contributory negligence. Assumption of risk is not pleaded. Probably it would not be necessary to plead it, any more than it would be necessary to plead contributory negligence under the rule in this state, when it is raised by the plaintiff’s evidence and a directed verdict is asked at the close of the plaintiff’s case. But the record is silent as to the condition of the ground to the right of the sidewalk or the existence of other reasonable alternative route. Still speaking for the writer alone, I believe that the plaintiff would be barred as a matter of law for assuming the risk, only if he had an alternative route and then voluntarily picked this one which he obviously knew presented some danger because he tested it. That he did not know the extent of the danger seems immaterial to me if he knew it presented some danger and decided to take such chance as there was. On the other hand I do not believe that a defendant municipality which owes the plaintiff a duty to keep the sidewalks in shape for him to travel upon can be saved by the defense of assumption of risk if the plaintiff had no alternative route and used due care in proceeding upon the one which the city should have had in shape for his use. See article in 20 Harvard Law Review, 14, 19, et seq.

We hold that a jury question existed as to contributory negligence on the part of the plaintiff and as to his assumption of the risk, if that defense be open under the present pleadings. The latter question was not argued and is not here decided. The judgment below is reversed and the cause remanded for retrial. Reversed.

NICHOLS, PJ, CARTER, J, concur in the judgment.