author: By HARVEY, J.:

text:
    FIRESTONE PLANTATIONS CO., Plaintiff, v. ERIE RAILROAD CO., Defendant.
    Common Pleas Court, Summit County.
    No. 161148.
    Decided July 1, 1948.
    Buckingham, Doolittle & Burroughs, Wm. T. Walker, Akron, for appellant.
    Burgess, Fulton & Fullmer, Slabaugh, Guinther & Pflueger, Robert M. Weh, Cleveland, for appellee. ,
   OPINION

By HARVEY, J.:

Plaintiff filed its Amended Petition against the defendant for damages arising from the non-delivery of certain specially designed structural steel. This steel was shipped by the Caine Steel Company of Chicago to the plaintiff as consignee, delivery to be made at 17 State Street, New York City. Said material was shipped to the plaintiff under uniform bill of lading, a copy of which is attached to the Petition, and which bill of lading constitutes the terms of the contract between the parties in this case.

Plaintiff further alleges in the Amended Petition that this steel shipment arrived in New York City about September l, 1945, and the steel that arrived in New York City was placed upon a boat and arrived at Marshall, West Africa, on the 16th day of October, 1945. The steel that arrived in West Africa was placed in a beach compound where it remained until December, 1945, and thereupon it came into the possession of the consignee in West Africa.

To this petition the Erie Railroad filed a second defense, and the plaintiff filed a demurrer to the second defense, and the question for decision by this Court is whether its demurrer is well taken.

The Railroad Company pleads in its second defense a provision in the bill of lading which provides that as a condition precedent to recovery claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property; or in case of export traffic within nine months after delivery at the port of export; or in case of the failure ■to make delivery, then within nine months after a reasonable time for a delivery has elapsed.

The answer further alleges that the claim for loss was not filed within the nine months after delivery of the property at the port of export.

Apparently forty-eight pieces of steel never arrived in New York City but were removed from the Erie Railroad to the warehouse of the Railroad at some point in New Jersey.

Plaintiff demurs upon the ground that the provisions of Section 2-b do not bar the action in this case, first, because the claim for loss was filed within nine months of the date that the whereabouts of the steel was discovered; and second, that a notice was not necessary because the steel was in the possession of the carrier.

The contract of the Erie Railroad under the bill of lading provided for the delivery of this steel in New York City. Delivery was made of part of the shipment on September the first, 1945. Strictly speaking, under the contract there was nothing further for the railroad company to do under this bill of lading.

Plaintiff had nine months from September 1, 1945, to make a claim.

If we follow the shipment further it arrived in Africa in October, 1945, and if you take the more liberal view that plaintiff should not be required to make a claim as a precedent condition to a lawsuit until they had knowledge that the shipment was lost, then under the allegations of the petition they had knowledge of the loss of this shipment in December, 1945, and they still had seven months from the date that they had knowledge of the loss.

A non-delivery is the same as a delay, and is covered by this bill of lading. The language of the bill of lading which constitutes the contract is clear that a precedent condition to recovery requires that the claims be filed in writing within nine months after delivery at the port of export. The fact that these goods were actually in the hands of the railroad is not sufficient to waive the terms of this contract. In fact, the railroad company has no right to waive the terms of limitations under this contract or to extend the terms of limitation.

Many cases hold that where there has been damage to a commodity and the railroad company knows all about the damage or inspects it and reports the damage to the consignee that the consignee must still make a claim in writing for damages as a condition precedent to recovery.

The bill of lading does not say that the consignee is entitled to nine months after he discovers a shortage in a shipment before he files a claim.

This Court is of the opinion that the case of Davis v. Tauby, 113 Oh St 499, is not in point. Most of the cases cited by the plaintiff are either admiralty cases or cases that were decided before the case of Chesapeake & Ohio v. Martin, 283 U. S. 209.

The case of Indiana Harbor Belt Company v. Alpirn, 296 N. W. 158 (Nebr.) is not in point, because in that case the plaintiff was the railroad company and was suing for de-murrage. The railroad company brought an action in the Municipal Court in November, 1937, which was prior to the nine-month period in which the defendant would be required to file his claim. The defendant shipper in that case filed a cross-petition or cross-claim for damages, and the Court held under those circumstances he could file a cross-petition and recover without giving notice.

It should further be remembered that the binding authorities in this situation are the Federal cases, because this is an interpretation of the Federal statutes under the Interstate Commerce Act, and it is true that some states have taken a more liberal view than the Federal Court took in the case of Chesapeake Railroad v. Martin, 283 U. S. 209. In a leading case of Railroad Company v. Blish Milling Co., 241 U. S. 197, the Supreme Court of the United States in that case specifically said that this being a Federal question it must be determined by the application of Federal law, and the determination by this Court of that question is binding upon state courts and must be followed, any state law, decision or rule to the contrary notwithstanding.

In the Blish Milling case the Supreme Court laid down the rule that there must be a clear intention to make a claim in writing, and the mere announcement to the railroad company that you have a shortage in the shipment is insufficient unless it is followed by a claim in writing within the nine-month period. Nor' can there be an estoppel or waiver. The Supreme Court said in the same case that to allow an estoppel against the claim of a failure to comply with requirements of the bill of lading would not be permitted — would be in effect permitting an alteration of the terms of a contract made in pursuance of the Interstate Commerce Act; and thus open the door for evasion of the spirit and purpose of the Act, which is to prevent preferences and discrimination in respect to rates and service.

To say in this case that the consignee had a right to trace the goods all over the Atlantic ocean and wait until such time as they had discovered where the goods were before making claim would be tantamount to making a new contract between the parties.

The rule is harsh but apparently the Supreme Court has held strictly to the terms of the contract in order that there shall be no discrimination between shipper and carrier.

This Court believes that it is bound by such authorities and that the demurrer to the answer is not well taken and should be overruled. Exceptions granted.


source: Caselaw Access Project

author: By STEVENS, J.

license: Public Domain

text:
    FIRESTONE PLANTATIONS CO., Appellant, v. ERIE RAILROAD CO., Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 3960.
    Decided February 25, 1949.
   OPINION

By STEVENS, J.

The amended petition filed herein sought recovery from defendant of $2,068.50, alleged to be the value of certain steel which was missing from a shipment to plaintiff destined for Marshall, West Africa.

The amended petition alleged that said steel was shipped by the Caine Steel Co., of Chicago, Illinois, about August 21, 1945, via the Erie Railroad Co., to the plaintiff on board the S. S. Adrastus at New York City; that the shipment was unloaded October 16, 1945, at Marshall, West Africa; that in December, 1945, plaintiff discovered that it was in possession of only a portion of the steel constituting said shipment; that from December, 1945, until September, 1946, plaintiff sought to locate said missing portion of said shipment, and in September, 1946, learned that said portion had been placed in ground storage at Weehawken, New Jersey.

Said shipment moved under a uniform bill of lading, which, by reference, was made a part of the petition. The bill of lading contained the following:

“Sec. 2(b). As a condition precedent to recovery, claims must be filed in writing with the receiving or delivering carrier, or carrier issuing this bill of lading, or carrier on whose line the loss, damage, injury or delay occurred, within nine months after delivery of the property (or, in case of export traffic, within nine months after delivery at port of export) or, in case of failure to make delivery, then within nine months after a reasonable time for delivery has elapsed; and suits shall be instituted against any carrier only within two years and one day from the day when notice in writing is given by the carrier to the claimant that the carrier has disallowed the claim or any part or parts thereof specified in the notice. Where claims are not filed or suits are not instituted thereon in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.”

On September 20, 1946, plaintiff filed its claim in writing with defendant.

The answer of defendant, for a second defense alleged that claim for said loss was not filed within nine months following delivery of the steel to the port of export, or within nine months after a reasonable time for delivery had elapsed, as provided in the bill of lading, and that plaintiff’s action was therefore barred.

Plaintiff demurred to said second defense; and, its demurrer being overruled, declined to plead further, and permitted judgment for defendant to be entered.

It is to reverse said judgment that this appeal on questions of law has been perfected.

. Concededly, the shipment in question was one in interstate commerce, and whether the plaintiff complied with the terms of the bill of lading is a question to be determined by the application of federal law.

The provision of the bill of lading above quoted is authorized by the Interstate Commerce Act (49 U. S. C. A. 20 (11)).

The decision of the Supreme Court of the United States in Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209; 75 L. Ed. 983, is, in the opinion of this court, completely dispositive of all the claims made by appellant in this appeal.

Judgment affirmed.

HUNSICKER, J, and DOYLE, J, concur.


author: By THE COURT:

text:
    ADAMS, Plaintiff-Appellant, v. GURKLIES, Defendants-Appellants, and COMER, Defendant-Appellee.
    Ohio Appeals, Second District, Champaign County.
    No. 119.
    Decided November 19, 1949.
    Benjamin E. Seibert, Urbana, for plaintiff-appellant, Dorothy Adams.
    Arthur W. Gurklies, for defendant-appellant, Arthur W. Gurklies and Arthur W. Gurklies as executor under the will of Emmett Comer, deceased.
    Houston, Houston & Holding, Urbana, by Harold W. Houston, for defendant-appellee, Harry Comer.
   OPINION

By THE COURT:

This is an appeal on questions of law from an order of the Common Pleas Court vacating a judgment in the case of Dorothy Adams against Arthur W. Gurklies, being No. 22176 in Champaign County Court of Common Pleas.

The judgment which was vacated found that the plaintiff was entitled to the possession of a $5000.00 note and mortgage which the defendant was ordered to surrender and deliver to the plaintiff. Prior to the action above recited, the will of Emmett Comer, deceased, had been admitted to probate in the Probate Court of Champaign County, Ohio, by the terms of which Arthur W. Gurklies was named executor‘and was thereafter appointed and qualified as such executor. The order of vacation was predicated upon a motion filed in the Common Pleas Court in case No. 22176 by Harry Comer, sole next of kin of decedent, who had prior thereto instituted his action to contest the last will and testament of decedent.

The motion at length fully set out chronologically the proceedings incident to the probating of the will of Emmett Comer, deceased, the naming of the executor, the filing of the name of Benjamin E. Seibert as Attorney of record for the executor, the filing of the inventory of the assets of the estate and the listing of the note in question as an asset, the appraisement of the property of decedent, the filing, hearing and approval of the inventory and appraisement and one of the terms of the will, namely Item VII,

“I give to Dorothy Adams, the balance due on the note and mortgage given to me by Prank and Elsie Nease, dated March 18, 1948, when same becomes due and for her to have the same rights therein as I would have if I were living and which I have this day assigned to her; to be hers absolutely.”;

the institution of the action of Adams V. Gurklies as an individual and the order therein. Then follows averments, the effect of which is to charge bad faith on the part of Gurklies, individually and as executor, and Benjamin E. Seibert, his attorney, in the institution of the suit, Adams V. Gurklies, and the subsequent proceedings therein including the taking of the judgment; that the executor did not have his day in court and failed to exercise the degree of care required of him in preserving and defending the assets of the estate. The institution of the action to contest the will was set up.

The motion prayed that Harry Comer and the executor be made parties and for vacation of the judgment.

Nine errors are assigned to the judgment which we will not discuss separately. The principal question is whether or not the appellee, Harry Comer, had such an interest in the subject matter of the action, Adams V. Gurklies, individually, as to authorize him to be made a party to the action and to invoke the jurisdiction of the court to act upon his motion.

In the case of Kennedy, Executor v. Walcutt, 118 Oh St 442, it is held that a person who is a beneficiary under a will has such a pecuniary interest in the estate of the testator as entitles him, under §12079 GC to contest another alleged will of the same testator which would destroy, reduce, or impair his share in such estate. A fortiori the next of kin who would be the sole beneficiary if the probated will is set aside has such a pecuniary interest in the estate as would entitle him to contest the will. It would not be necessary to invoke the pronouncement in Kennedy, Extr. v. Walcutt to establish the, principle that the next of kin, who would take if the will was set aside, would have such a pecuniary interest as to answer the description of the language in §12079, “A person interested in a will or codicil admitted to probate, etc.”

The effect of a contest of a will upon the powers of executors during the contest is defined in §10509-22 GC, which is to clothe the administrator or executor with authority to carry on the mandatory obligations of the estate but to hold distribution in abeyance.

In our judgment it follows that the next of kin has such an interest in the assets of the'estate as that he may intervene and interpose an equitable defense, the effect of which, if true, would be to prevent the dissipation of assets of the estate of which he would be a beneficiary if the will was eventually nullified. In this conclusion we recognize that the executor or administrator is during the administration of the estate nominally the legal representative of the testator and of those who might share in the estate. But here we do not have the ordinary situation. The motion is based in part upon the claim that there has been a complete failure of the executor to exercise his manifest obligation to the estate as a result of which assets that properly belong to it may be removed from administration.

We have no record of the proceedings in the trial court and must accord to the order appealed from every intendment which will support its regularity and validity. So doing, we can not say that the court erred in making Harry Comer and the executor parties or in taking such action as would prevent the transfer of the note to Dorothy Adams without the intervention of the executor. It is asserted that no notice was given to the executor of the pendency of the proceedings to vacate and of the purpose to make him a party defendant but we can not so hold because there may have been an entrance of appearance by the executor at the hearing on the motion.

However, we stand upon our former opinion in Canal Winchester Bank v. Exline, 61 Oh Ap 253 and hold that the proper order in this case was not a vacation but a suspension of the judgment.

We find no other error assigned well made and with this modification in the order appealed from, the judgment will be affirmed.

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


author:
By QROSSLAND, J.
      By CROSSLAND, J.

text:
    HUNTSMAN, Plaintiff, v. McGOVERN et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 36789.
    Decided November 23, 1949.
   OPINION

By QROSSLAND, J.

Pursuant to the terms and conditions of a restraining order heretofore granted herein hearing was had, evidence introduced, and the cause submitted to the court, after argument and citation of authorities, as upon the' merits, and the court makes its determination herein accordingly.

Certain facts are unquestioned. There is a subsisting contract between the Zanesville plant of The Line Material Company and local union 767 comprising its eligible electrical employees, to which both United Electrical Radio and Machine Workers of America, hereinafter referred to as U. E., and International Union of Electrical, Radio and Machine Workers —C. I. O., hereinafter referred to as I. U. E., claim or may claim property. Said contract does not expire before June 30, 1950, and may continue thereafter. It is the only collective bargaining vehicle of said employees presently or immediately available to them in their dealings and relationship with said company and it is conceded on both sides that said employees are entitled to its effective, effectual and continued operation in their behalf, regardless of their divided interest, activity and allegiance otherwise. Title to physical property and other assets of local 767 is in controversy, including dues check-off provided for under said contract, and said local union is impeded and frustrated in its physical operation as well as in its representative capacity. There is no apparent prospect of any unified integration of said employees, determinable by them, short of an election and decision pursuant to the provisions of the Labor Management Relations Act of 1947, which is not an immediate prospect. Meantime, the cleavage dividing groups of employees threatens to deepen and widen, thereby accentuating an acute difficulty which already confronts and confounds effective labor management relationship within said plant. While this court is asked to enjoin acts of groups or individuals, it cannot and does not ignore the over-all interest, concern and welfare of the entire number of affected employees, whose basic interest, concern and welfare is the primary and fundamental responsibility of a court of equity after its powers have once been invoked by a dissident member.

“As a rule an application for an injunction is addressed to the sound discretion of the court, its allowance being a matter of grace rather than of strict right, and determined by the nature of the case, the peculiar facts presented therein, the law governing the same, and by considerations of public policy and convenience.” 21 O. Jur., 1006, Sec. 17.

In considering what this court may do to protect and conserve the interest of said employees pending an election and determination by the National Labor Relations Board, the court considers that the situation with which it is called upon to deal in this case is not unlike that which normally exists under said Labor Management Relations Act and that, accordingly, the provisions of that Act apply analogously to the consideration which should be given by this court in the instant case.

Section 141 of said Act, in part, provides:

“It is the purpose and policy of this Act, in order to promote the full flow of commerce — to protect the rights of individual employees in their relations with labor organizations whose activities affect commerce — and to protect the rights of the public in connection with labor disputes affecting commerce.”

Section 157 provides that:

“Employees shall have the right to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection — .”

The court considers, as it considers to be the import of said Act, that the employees directly affected, in whose behalf a bargaining agreement is made, are the persons primarily concerned, and that their concern is therefore the primary consideration of this court in any matter relating to them affecting their labor representation.

To put the matter another way, this court considers and determines that the labor representation question posed in this case is one which has its proper inception and answer in the plant employees of the local union and that their interest and desire and not the interest and desire either of U. E. or of I. IT. E., should and shall govern. The affiliation, if any and whatever, of the local union, should be determined in accordance with the wish and expression of local union members and thereby proceed from below up into any higher level or levels of association or affiliation, rather than as a binding and irrevocable harnessing of absolute control and direction from the top down. That is what this court understands to be the intention and meaning of the provisions of the Labor Management Relations Act of 1947 and that is the spirit and purpose which this court intends to effectuate in this case. Such a view is not without legal precedent.

Williston on Contracts, Revised Edition, Vol. Two, page 1100, section 379 A, states:

“A number of courts — have adopted the theory that the employee is the beneficiary of a valid contract between the union and the employer. — ”

and again on page 1101, the author says:

“The fact that there is no adequate remedy for the enforcement of such an agreement between a union and an employer against one another affords no reason in such a case why the beneficiary of such an agreement should not enforce it.”
“Third party for whose benefit contract is made may enforce it, notwithstanding he is not named therein nor ini privity to consideration.” McCoy v. St. Joseph Belt Ry. Co., 77 S. W. (2nd) 175, 2nd syllabus.
“A contract between railroad company and trainmen’s union, as to pay, seniority, and discharge of trainmen employed by company was valid, so as to authorize action by union member against company for alleged breach of contract by arbitrarily discharging plaintiff without just cause, though he was not-direct party to contract, except as made so thereby for his-benefit.” Moore v. Illinois Central R. Co., 24 Fed. Supp., 731 (1st syllabus)

This court approves, adopts and follows the reasoning and: conclusions of the Court of Chancery of New Jersey in the case of Internationl Union, etc. v. Becherer, 61 Atlantic 16, decided August 31, 1948, affirmed by Superior Court, Appellate Division, July 12, 1949, the 3rd, 4th and 5th syllabi of which read as follows:

“3. A local union affiliating itself with a national or international organization composed of local unions does not by such affiliation lose its character as a separate and distinct voluntary association; and by such affiliation a local does not become an indivisible and inseparable part of the larger organization, but owes its creation and continued existence ⅛® its own members who may withdraw at will.
4. Property accumulated by a local labor union from contributions made by individual members is a trust fund for benefit of those members and though legal title to such property may be vested in officers, such ownership is of a trust character for use of individual members.
5. Affiliation of a local union with an international union creates liability resting on local union, while affiliation endures, to pay dues or per capita tax called for in international charter, but gives the international union nothing more than a claim or an account receivable, and no direct property right in the local union’s assets arises in favor of the international.”

On page 20, 2nd column, the court says:

“The existence of the’ Local Union, its revenue and functions, are not derived from or dependent upon the International. These individual unions could well continue their existence and their functions without any relationship with any fiational or international labor organization. Such relationship may have its decided advantage, but it is not a sina qua non. —Each local union is a separate and distinct voluntary association which owes its creation and continued existence to the will of its own members. The property accumulated by the local union from contributions made by the individual members is a trust fund for the benefit of those members, and though the legal title to such property may be vested in the officers of the local, such membership is of a trust character for the use of individual members.”

It is, therefore, ordered, adjudged and decreed:

1. That Local Union 767, as constituted immediately prior to November 6, 1949, without outside affiliation, continue as the representative for all purposes of collective bargaining in all respects with The Line Material Company.

2. That an election of all members of said Local, as of November 5, 1949, be had and held at the earliest practicable date, for the election of pro tern officers to serve in behalf of said membership and to administer the affairs of said Union both in its operation and in relation to said Company, as trustees of this court, until the further order of this court, and to act as such in all proper and essential respects pending action and determination by The National Labor Relations Board.

3. That all books, records, accounts, property, funds, premises and other assets of said Local be delivered into the possession of said trustees for their proper and appropriate use and safekeeping, and who shall also receive and disburse for recognized proper and necessary local purposes only all dues check-off from said Company, retaining all such receipts thereover, out of which latter there later may be forwarded such national or international or other organizational dues, if any, as may be consistent and in accordance with eventual affiliation resulting subsequent to National Labor Relations Board intervention, action, decision and determination and when the jurisdiction and order of this court shall have terminated.

Decided December 5, 1949.

4. Until election as above provided all property and dues check-off shall remain and become impounded as heretofore provided in the former order of the court.

5. For the purpose of arranging for and holding said election and in charge thereof, as well as approving before disbursements all future funds and income received and acting for the court in all other respects pertaining to the effective and efficient fair and impartial use and operation of said Local Union 767 in behalf of all said employees, while in the hands of said trustees, the court hereby appoints as its direct representative for all such purposes, under whose direct, authority and control said Local Union Trustees shall act, John C. Ringhisen and Joseph J. Pfeifer, attorneys of this, bar, whose compensation for their services and expenses, herein shall be determined by the court and ordered paid out-of the funds of said Local at the completion of their service- and before final determination of this cause.

6. Until such time as this court fully relinquishes jurisdiction in and of this cause, all parties hereto, their servants- and employees and all persons acting in concert or in conformity with them or any of them are hereby enjoined from acting or presuming or purporting to act in any way that in any respect will or may prejudice or otherwise adversely affect any right, title or interest in Local Union 767, unaffiliated.

It is further ordered that the costs of this action, of which the aforesaid compensation and expense shall be part, be paid from the funds of said Local, unless otherwise provided by the parties, and exceptions to the within findings, determinations and orders are granted to plaintiff and defendants.

ORDER CONFIRMING ELECTION AND JOURNAL ENTRY

No. 36789.

By CROSSLAND, J.

This day the report of John C. Ringhisen and Joseph J. Pfeifer, attorneys at law, of the election of employees of The Line Material Company who were members of Local Union 767, as of November 5, 1949, of officers pro tern, pursuant to the former order of the court, and, the court considering and finding that said election proceedings were fairly, fully and impartially conducted in all respects of notice, knowledge, meeting place and time and nominations and elections thereat, and in all other respects, and that the following named persons were duly elected as such officers pro tern to administer the affairs and business of said Local Union 767 in its internal operation as well as in its labor management relationship with said Company, in all proper and essential respects, pending action and determination by The National Labor Relations Board relative to subsequent affiliation, if any, to-wit:

William T. McGovern, president;
Wayne Dozer, vice president;
T. M. Forsythe, financial secretary;
T. J. Withers, recording secretary;
E. A. Luster, chief steward;
Russell Pollock, )
Paul O’Hara, ( executive board members;
Clara Wollard, )
Paul O’Hara, )
negotiating committee members;
Clara Wollard, )
Robert Carpenter,)
William Street, ( trustees;
James Ritterbeck,)
William Wilburn, sergeant-at-arms.

It is therefore ordered, adjudged and decreed:

(1) That said persons serve as such officers to the time of such certification and election and qualification thereunder, or until the further order of the court between this and such time, as trustees of this court;

(2) That said officers pro tern, as trustees of the court, in behalf of said Local Union 767, unaffiliated, and its membership as of November 5, 1949, receive and possess all books, records, accounts, property, funds, premises and all other assets of said Local Union 767, for the proper and appropriate use and safekeeping of said Local Union 767 and its said membership, for whose use and benefit said officers, as such trustees, are also entitled to and shall receive from said Company into said Local Union Treasury all dues check-offs accruing under the existing Union-Company contract in the Zanesville plant and all other local union income, if • any, due or to become due from any other source, expending and disbursing therefrom by bank check for recognized proper and necessary local purposes only, and then only upon approval of said attorneys, at least one of whom shall be required to countersign any and all checks of said Union before issuance thereof by the disbursing Union officer, with appropriate arrangement therefor at the offices of the Local Union 767 bank depository.

(3) That, reiterating the language of Clause 6 in the court’s order of November 23, 1949, until such time as this court fully relinquishes jurisdiction in and of this cause, all parties hereto, their servants and employees and all persons acting in concert or in conformity with them or any of them, are hereby enjoined from acting or undertaking, presuming or purporting to act in any way that in any respect will or may prejudice or otherwise adversely affect any right, title or interest in Local Union 767, unaffiliated; which concerns' and pertains to any and all matters, property and interests of said Local Union 767, including the preservation of its unimpaired existence and integrity as a local union with all its property, income and assets, including said Union-Company contract and the benefits and perquisites thereof divorced from U. E. or other affiliation, which said Local Union 767 is and shall remain intact and inviolate as a single entity, without assertions or acts in conflict, denial or derogation thereof, in any manner or respect, direct or indirect, said Local Union 767, as herein constituted, being the sole union authority engaged in any of the matters, proceedings and transactions herein involving any and all of the parties hereto, their servants, employees and associates; and all said parties, servants, employees and associates are hereby enjoined from any and all efforts, acts, deeds and assertions contrary or contradictory thereto.


text:
    WEAVER et, Plaintiff-Appellants, v. GALE, Exr., et, Defendant-Appellees.
    Ohio Appeals, Second District, Preble County.
    No. 124.
    Decided November 12, 1949.
    Wilbur D. Spidel, Hugh A. Staley, Greenville, Julian E. Clark, Eaton, for plaintiff-appellants.
    Dye & Ernst, King & Young, Eaton, for defendant-appellees.
   OPINION

By THE COURT:

This is an appeal on questions of law from the Common Pleas Court of Preble County, Ohio, in which a jury rendered a verdict in favor of the defendants in a suit to contest a will on which the court entered judgment. The motion for new trial was filed and overruled.

The appellants have assigned twelve separate grounds of error, which will be discussed generally. The appellants contend that the court erred in not sustaining a challenge for cause to prospective jurors. Challenges for cause are controlled by the provisions of §11419-51 GC. After a careful consideration of the record of the prospective jurors on voir dire examination we conclude that no good cause for challenge was shown and therefore the court did not commit error in this regard.

The appellants contend that the court committed error in refusing to sustain a motion either to dismiss Irene Somers as a juror and seat the thirteenth juror, or to declare a mistrial because of misconduct of Irene Somers. The alleged misconduct of Irene Somers was brought to the attention of the court after the trial had proceeded for a number of days. The alleged misconduct consisted of statements made out of court to a third person, which appellants contend show that Irene Somers was biased and prejudiced in favor of the defendants. The court took the testimony of Irene Somers and the person to whom the alleged statements were made. On the basis of this testimony the court found that Irene Somers had not been guilty of misconduct and did not exhibit bias or prejudice in favor of the defendants and overruled the motion to dismiss Irene Somers or to declare a mistrial. The determination of this matter rested in the sound discretion of the trial court. A reviewing court will not disturb the judgment of the trial court in such matters unless an abuse of discretion has been shown. Lingafelter v. Moore, 95 Oh St 384, 389, 117 N. E. 16; Moody v. Vickers, 79 Oh Ap 218, 223, 72 N. E. (2d) 280. In the case of Lingafelter v. Moore the court had under consideration §§11437 and 11438 GC, which are now §§11419-51 and 11419-52 GC, and on page 389 the court discussed the effect of the amendment to §11419-52 GC and held: “Notwithstanding the amendment to the section under consideration, the rule above stated should be adhered to and great latitude of discretion allowed to the trial court as to the validity of the challenge, and a judgment should not be refused because of the failure of the court to sustain a challenge to a juror upon the ground of prejudice or bias, unless it appears that there has been abuse of discretion and that the litigant has been denied his constitutional right to an impartial jury”. The rule above to which the court referred was the holding of the court in Dew v. McDivitt, 31 Oh St 139, in which it was held: “On the trial of the validity of a challenge alleged against a juror, other than a principal cause of challenge, a sound discretion is allowed to the court.” See also Vol. 24, O. Jur., page 228, Section 100. The trial court found that the statements made by the juror were not of a character which would justify sustaining a challenge on suspicion of prejudice against, or partiality for, the defendants. We agree with the judgment of the trial court.

We find no error on the admission or exclusions of evidence. Neither do we find that the court committed prejudicial error in refusing to give certain special charges before argument submitted by the plaintiffs. We agree with the contention of the defendants that these special charges were properly refused on the ground that, if given, they would have overemphasized certain items of evidence to the exclusion of the principal issues in the case. We are further of the opinion that the court did not commit prejudicial error in its general charge.

After a consideration of the record in this case we are of the opinion that substantial justice has been done and that the parties hereto have had a fair trial.

Judgment affirmed.

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


author: By SKEEL, PJ.

text:
    SHIMICK, Plaintiff-Appellant, v. STEARNS, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21381.
    Decided January 9, 1949.

      Martin A. McCormack, E. J. Beran, Cleveland, for plaintiff-appellant.
    Bulkley, Butler & Pillen, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment for the defendant entered by the Court of Common Pleas of Cuyahoga County. .o

. The plaintiff’s action was for damages suffered because of personal injuries he claims to have sustained as a proximate result of alleged acts of negligence of the defendant in the operation of his automobile.

The plaintiff had driven his automobile to the cab court of the Union Terminal.Depot in Cleveland, Ohio, to meet a friend who was to arrive in Cleveland that night. He parked his automobile at the cab platform close to the entrance of the station. While the plaintiff was putting baggage into the baggage trunk of his car the defendant drove his Cadillac automobile into the cab court and stopped about ten feet behind the plaintiff’s car. The defendant was seated in the front $jjbat of his automobile close to the right hand door, his son-in-law Mr. White, was seated in the middle and the defendant’s chauffeur was behind the driving wheel. Seated in the rear seat was Mr. Motch, Mrs. White and Miss Jean Briggs. The two ladies were going to Chicago.

The Cadillac automobile was equipped with hydramatic transmission. In explanation of its operation, the defendant testified as follows:

“A. The car was a hydramatic. Now, hydramatic is a wonderful transmission, it is a wonderful device, but it has some objection. If the car is out or in gear, it has a tendency to creep if the speed of the motor is even temporarily accelerated; it is run by an oil clutch and the acceleration of the motor tends to connect the mechanism.
Q. Well, now, if the motor is accelerated, what is the result of that?
A. The car creeps.
Q. Creeps forward?
A. Creeps forward, or, if it is in reverse, it creeps backward, during the time and only during the time that the motor is accelerated — .”

When the chauffeur brought the automobile to a stop he left the motor running. He got out on the left hand side of the car to attend to some baggage. After the chauffeur left, the defendant directed Mr. White to get out and help the girls. As Mr. White got out in response to the defendant’s direction, he passed under the steering wheel on the left side of the car and in doing so, accidentally stepped on the accelerator, whereupon the automobile moved forward striking the plaintiff. Upon this subject White testified as follows:

“Q. When the accident happened was the chauffeur in the car?
A. No, he was out, I think, in the back doing something in the back, getting out the bags, I guess.
Q. Do you know what made the car move?
A. Why, yes. Father Stearns told me to get out and see if I could help the girls, and so — and he was sitting on my right next to the door, so I had to move over across the car to get out, and I accidentally hit the accelerator and it went forward a little.
Q. Were you sliding out under the driver’s wheel when you were getting out?
A. Yes.”

The plaintiff’s fourth allegation of negligence in his petition was as follows:

“4. Defendant operated and caused his car to be operated in a forward direction and in the direction of the rear of the plaintiff’s car, when plaintiff was at the rear thereof, and defendant was careless and negligent in that respect.”

The court in its charge to the jury upon the issues, after explaining that there was no doubt but that the plaintiff was entitled to be compensated for his injuries, said:

“But the question is, the first question of fact, the first issue you have to determine is whether or not he is entitled to have this defendant, Frank B. Stearns, pay him for those injuries. And as was stated by Mr. Butler, in his argument, I think that summarizes the first issue. The question is: Who was responsible for causing that car to move forward? The plaintiff claims that Mr. Stearns was. Mr. Stearns denies that. That places upon the plaintiff the obligation of proving that Mr. Stearns, the defendant, was responsible for causing that car to move forward, and that burden the plaintiff must sustain by what we call in law a preponderance of the evidence.”

After the case had been submitted to the jury, they at their own request were returned to the court room for further instructions. They presented the following written question:

“Is the owner of a car responsible for the actions of his employee or guest while operating his car?”

The court then gave further instructions as follows:

“The general rule is that one is responsible for the actions of any employee and is not responsible for the actions of a guest. That liability is one for which the guest must respond. And I think in this case, I should say that this case has been tried upon the question as to who put the car in motion. If it was the guest, the guest would be responsible, or would be liable to respond in damages, but the owner of the car would not be liable to respond for his guest. It has been the theory of this case, and it is so tried that the employee was out of the car at the time that the car was put in motion.”

The plaintiff requested the court to, give further instructions at this time, as follows:

“Then I request this court to charge that if they find that the owner of this machine ordered his guest to go out and help the girls with their baggage, and in addition to that refused to get out of his sidé to permit the guest, and ordered him to go past the wheel while that car was — while the motor of that car was running, that that first order constituted that guest his agent and servant, and the second order constituted that guest his agent and servant with specific instructions in that in following the specific instructions of that owner that guest was negligent, then the negligence of that agent and the guest who became the agent of the owner, following out his order, made the owner responsible under the theory of respondeat superior.”

This request was refused, to which exception was taken.

The jury returned a verdict for the defendant upon which judgment was entered.

The plaintiff’s assignments of error are as follows:

“1. The trial court erred in overruling plaintiff’s motion for a new trial on the ground that the verdict was against the manifest weight of the evidence.
2. The trial court erred in overruling plaintiff’s motion for a new trial on the ground that the court’s charge as to “negligence and proximate cause” was inaccurate, ambiguous and misleading, all to the prejudice of the plaintiff.
3. The trial court erred in overruling plaintiff’s motion for a new trial on the ground that it refused to permit certain cross-examination of the defendant.
4. The trial court erred in overruling the plaintiff’s motion for a new trial on the ground that it refused to give the specific charge submitted by plaintiff after the jury had returned for further instruction.”

We will first consider the second and fourth assignments of error. The charge of the court on the question of defendant’s negligence was very limited in scope and not sufficiently explanatory to be of any assistance to the jury. The court told the jury that the sole question for them to decide was “who was responsible for causing the car to move forward?” The failure of the court to define the issues clearly and to state the rules of law applicable thereto must have been the reason that they requested further instructions. The additional instructions given as above set forth, were prejudicially erroneous to the plaintiff’s case. The effect of this instruction was that under no circumstances could the defendant be held liable for the acts of a guest, even though the guest was acting at the express direction and request of the defendant and acted under his control and authority.

The evidence of the defendant shows (1) that when defendant’s chauffeur brought the automobile to a stop in the cab court at the Terminal, he left the motor in operation; that because the automobile was equipped with hydramatic transmission, the accelerating of the motor by stepping on the throttle, without more, would start the automobile in motion; that the defendant who was seated on the right side of the front seat, directed his son-in-law who was seated to the defendant’s left, to “get out and help the girls” knowing White to be crippled and that it would be difficult and dangerous for him to pass under the driving wheel under these circumstances. Under these undisputed facts, to say that the defendant could not be held liable under any circumstances for the admitted negligent acts of White stepping on the throttle, when he knew that the motor was running and that plaintiff was standing in a position of danger, if the defendant’s automobile was moved forward, constituted error prejudicial to the rights of the plaintiff.

In Restatement of the Law of Agency, pages 496-497 paragraph 225 the rule is stated as follows:

“One volunteering services without an agreement for or expectation of reward, may be a servant of the one accepting such services.”
“Consideration is not necessary to create the relationship of principal and agent, and it is not necessary in the case of master and servant. One who has not contractual capacity may be a servant (see section 21) or a master (see section 20). One may be a servant without having promised to give or to continue the service.”

The impelling factor in determining the relationship under circumstances such as are here presented, is whether or not the defendant manifested his consent to receive the services of White as his master. (Paragraph 221, page 490, Restater ment of the Law of Agency.)

In the case of Bretzfelder v. Demaree, 102 Oh St 105, the Supreme Court of Ohio stated the rule as follows: (Parags. 2-3 of syllabus)—

“2. In an action against the husband for his wife’s negligence, the marital relationship, of itself, is not a sufficient ground for recovery against him. It must be proven that the negligent acts of the wife were committed in the furtherance of her husband’s business or in the execution of his orders. A relation of principal and agent or of master and servant between them must be shown as a basis for recovery against him.
“3. When, by permission of her husband, the wife is allowed the use the latter’s automobile for her own purpose, proof that the .car was his, that she was his wife, and that she took her child with her to religious services, does not, ipso facto, make the husband liable as her principal.”

In Jordan v. Friedman Cartage Co. 27 Abs 433, the court sustained a judgment for the plaintiff for injuries received by falling through an unguarded trap door in the sidewalk where defendant’s driver who was going to deliver beer to the basement of a restaurant fronting on the street where the trap door was located, directed an employee of the restaurant to open the trap door which he did, without guarding against the danger thus created. Paragraph 3 of the headnote provides:

“3. Where a driver of a cartage company requests any one in a place to which he is delivering beer in barrels, to go into the basement and open the trap door in the sidewalk, and nevertheless fails to guard the same or warn pedestrians, and injury results therefrom, the Cartage Company is liable if such opening and failure to guard are the proximate cause of the pedestrian’s injury, regardless of the fact that the person who opened the door was neither an agent nor an employee of the company.”

In Hollidge v. Duncan, 85 N. E. 186 (Supreme Court of Mass. 1908) plaintiff was looking in a store window when the pole or tongue of defendant’s cart, through the negligence of a bystander, caused to either strike him or break the window from the effects of which plaintiff was injured. The defendant’s, servant had requested the bystander to help make some repairs as the cart was out of order and the horses had been unhitched therefrom. Paragraphs 2 and 3 of the headnotes provide:

“2. A pedestrian having been injured by the pole of a dump cart swinging around and striking him, or striking glass which fell on him, caused by a bystander pulling a blanket caught between the seat and the sweep of the cart while assisting defendant’s driver in repairing the cart, which was out of order, the court, in an action against defendant for such injury, in the absence of an explanation as to how long the cart had been out of order, or what caused it to be so, could find that the cart was out of order through defendant’s negligence and that its condition contributed to the accident, or, in other words, that if it had not been for the cart’s condition, the bystander’s act would not have caused the accident.
3. It is not essential to defendant’s liability for injury to a pedestrian, caused by the pole of a dump cart swinging around and striking the pedestrian, or striking glass, which fell on him, caused by a bystander, who had been asked by defendant’s driver to assist him in repairing the cart, pulling a blanket caught between the seat and the sweep of the cart, that defendant should have been able to foresee the precise manner in which the accident happened; it being sufficient that injury to another was reasonably to be apprehended, as a result of his negligence in permitting the cart to be out of order.”

In Winkelstein v. Solitare, 27 Atl. Rep. (2d) 862, (Sup. Ct. of N. Y. 1942) the defendant directed his sister-in-law to close the door of his automobile and in doing so she negligently shut it on the finger of the plaintiff. Paragraphs 2 and 3 of the headnote provide:

“2. Where defendant’s sister-in-law at defendant’s direction, closed the door of defendant’s automobile on an invitee’s finger, as invitee was entering automobile,' the wrongful act in execution of defendant’s command was his own and the sister-in-law was the ‘agent’ of defendant so as to render defendant liable for her wrongful acts under the principle of ‘respondeat superior.’
3. The relation of ‘master and servant’ in its full sense arises only out of contract but to constitute that relation as to third persons, it is not requisite that any actual contract should subsist between the parties or that compensation should be expected by the servant, the test being whether the act is done by one for another with the knowledge and assent of the person to be charged as master.”

See also Alhorf v. Wolfe, 22 N. Y. 355; Guss v. Twin City Taxicab Co. 139 N. W. 611; Rubin v. Schapp, 127 Fed. (2d) 625; McCarthy v. Harrison, 283 Ill. App. 129.

It is clear from the foregoing authorities that at least the question of whether or not White was acting in such a way as to make the defendant liable for his negligent act, the defendant having “accepted such services” is a jury question.

An examination of the plaintiff’s request to charge made at the time the jury had returned for further instructions, while not wholly correct, brought to the attention of the court the errors in the instruction given, and it was therefore the duty of the court to give a corrected instruction on the responsibility of a defendant for the acts of his guest, performed at his request, where under the circumstances it can be said that there is evidence tending to establish that by his direction he consented to receive such services as a master.

One other circumstance must be given consideration in considering the court’s charge given in answer to the question presented by the jury and the refusal of the court to give the correct substance of plaintiff’s requested charge. The defendant’s chauffeur, when he brought the automobile to a stop in the taxicab court at the Terminal, and left his place behind the wheel to see to the baggage, left the motor running. His act in so doing was the act of the defendant Stearns. Whether or not such conduct, under the circumstances, was the conduct of a reasonably prudent person, was a jury question, together with the further question as to whether or not such act of negligence, if it constituted a failure to exercise ordinary care, was a direct and proximate cause of the injuries sustained by the plaintiff.

In considering this question two undisputed facts must be kept in mind, first — the automobile was equipped with hydra-matic drive which would cause it to move forward by the slightest acceleration of the motor, and second — the defendant directed White to leave the automobile and “help the girls” when, by his own conduct, the left front door was the only door through which White could carry out the defendant’s instructions. Under these circumstances the question of whether a foreseeable danger to the plaintiff was created in the exercise of ordinary care, certainly was a jury question. This issue is raised under the allegations of plaintiff’s petition including specifications of negligence No. 4 and the evidence. By the court’s charge the jury was pre-eluded from giving this theory of the case any consideration whatever.

In Restatement of the Law of Torts, under the heading of “Negligence of Intervening Acts” Vol. 2, paragraph 477 at page 1197, the author says:

“The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if
(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or
(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or
(c) the intervening act is a normal response to a situation created by the actor’s conduct and the manner in which it is done is not extraordinarily negligent.”

In Mouse v. Savings & Trust Co. 120 Oh St 599, in considering the question of proximate cause in causing an injury through the negligent act of the defendant where an intervening act proximately assists in bringing about the injury, sets forth the rule in the first paragraph of the syllabus as follows:

“1. The mere fact that the intervention of a responsible human being can be traced between the defendant’s alleged wrongful act and the injury complained of, does not absolve him upon the ground of lack of proximate cause, if the injury ensued in the ordinary course of events, and if the intervening cause was set in motion by the defendant.”

See also:

Wiles v. New York Central Railroad Co. 19 N. W. (2d) 90, Michigan Supreme Court, 1945.

Pugh v. Akron, Chicago Transportation Co. Inc. 64 Oh Ap 479, affirmed, 137 Oh St 164.

The second and fourth claims of error are therefore well taken. We find no error as set forth in the first and third assignments of error.

For the foregoing reasons the judgment of the Court of Common Pleas is reversed, and the cause is remanded for further proceedings according to law. Exceptions noted. Order see journal.

McNAMEE, J, HURD, J, concur.


author: By HORNBECK, J:

text:
    LANGE, Estate of, In re: LANGE, Petitioner-Appellant, v. LANGE, et, Defendants-Appellees.
    Ohio Appeals, Second District, Preble County.
    No. 122.
    Decided November 19, 1949.
    King & Young, Eaton, for appellant.
    Thurston P. Bittle, Eaton, for appellees.
   OPINION

By HORNBECK, J:

The appeal is on questions of law from a judgment dismissing plaintiff’s petition after the sustaining of a demurrer thereto. The demurrer raised the question of the bar of the Statute of Limitations as against the cause of action sued upon.

The plaintiff was the wife of Herman Lange in his lifetime. The parties present the question in this court upon an agreed statement of facts from which it appears that on September 26, 1925, while plaintiff and Herman Lange were living together as husband and wife he executed and delivered his promissory note to his wife in the sum of $1200.00, due one year after date and that the note had not at any time been renewed; that plaintiff and Herman Lange, after the giving of the note, lived together continuously as husband and wife until his death on May 19, 1948; that the plaintiff was duly appointed the administratrix of the estate of Herman Lange, deceased, on June 9, 1948 and that on June 25, 1948, she filed her petition for allowance of the claim against said estate based on the above mentioned note. To this petition the demurrer was interposed and sustained. The question presented is whether or not the Statute of. Limitations runs against plaintiff’s claim because of the marriage relations subsisting between them at the time the cause of action arose and continuously thereafter for more than fifteen years.

Bv the terms of §7999 GC the husband and wife were free to enter into any engagement or transaction with the other; which either might if unmarried. In Gould v. Cooper, 15 Oh Ap 223, and Hart v. Service, 3 O. N. P., 316, it was held that this section gives the husband or wife the right to maintain an action to enforce a contract between them. Thus, notwithstanding the confidential relationship of husband and wife with all that it implies, one has the right to maintain an action at law against the other on contract and it follows that such action would lie upon a promissory note. Sec. 7999 GC is a part of the Marriage Relations Act which removes the common law disabilities of a married woman, Bechtol v. Ewing, 89 Oh St 531, and the unity of the spouses as it was known at common law.

The tolling of the Statute of Limitations because of certain disabilities is now found in §11229 GC, and they are minority, unsound mind or imprisonment as to which an action-, unless for penalty or forfeiture, may be brought within the times limited by the various statutes of limitations after such disability is removed. The subject matter of this section of the code is the same as that of amended §4986 GC found in an act enacted April 14, 1886, 83 O. L. 74. Prior to the enactment of this section, a former section bearing the same number was effective and carried one of the disabilities as “a married woman”. House Bill No. 699, passed March 26, 1883, 80 O. L. 77.

Revised Statute 3112, later §7999 GC, was enacted after the act of April 14, 1886 manifestly with the knowledge of the legislature that the statute of limitations contained no exception in its application to actions growing out of transactions of a married woman with her husband. The removal of the married woman from the list of disabilities tolling the statute of limitations was by express action of the law-making body and is not a repeal by implication and, it must be assumed, it was enacted with full appreciation of its effect.

The statutes of limitations bearing no exceptions in favor of a married woman must be given application unless to do so would be so manifestly against public policy as to support the action of the courts in refusing to enforce them.

We recognize the force of the argument of counsel for the appellant that the effect of compelling a married woman to sue her husband during coverture might tend to disrupt the felicitous relations that should normally exist in the married state but we do not believe it would support our action nullifying the express terms of the statutes and the avowed purpose of the legislature.

We have been referred to the one case in Ohio which is in point. Liggett, Admx. v. Est. of Liggett, et al., 3 O. N. P. N. S. 518. We believe this opinion is sound upon its logic and according to a note thereto was affirmed in the Common Pleas and Circuit Courts. It is true that as suggested by counsel for appellant it may have been affirmed upon one of the grounds other than the effect of the statute of limitations upon the right of the married woman to maintain her action on her note against her husband’s estate.

We recognize that the weight of authority outside of Ohio is against our holding. Some of the cases can be distinguished but many of them from numerous states are grounded upon the proposition that to construe the law so that a married woman would have to sue her husband during coverture to prevent the statute of limitations running against her claim would tend to disrupt the marital relations, the unity of the spouses, and should not be countenanced by the courts. In Ohio we believe that the rationale of these cases could more properly be brought to the attention of the legislature than to the courts in view of the language of the statutes which are controlling.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By GUERNSEY, PJ.

text:
    CENTRAL NATIONAL BANK, Plaintiff-Appellee, v. INTERNATIONAL SALES COMPANY, Defendant-Appellant, ROGERS et, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21532.
    Decided January 4, 1950.
    Laylin & Smith, Cleveland, for plaintiff-appellee.
    Jack J. Yelson, Cleveland, for defendant-appellant.
    Baker, Hostetler & Patterson, Albert J. Williams, Cleveland, for defendants-appellees.
    (GUERNSEY, PJ, MIDDLETON, J, of Third District: DOYLE, J, of Ninth District sitting by designation.)
   OPINION

By GUERNSEY, PJ.

This is an appeal on questions of law from a judgment of the Municipal Court of Cleveland.

This appeal arises out of a petition for declaratory judgment filed in the Municipal Court of Cleveland, and is known as case No. A-11204 in said court.

Said case was filed by the Central National Bank of Cleveland, plaintiff-appellee herein, making International Sales Company and Milton Goldberger, Universal Sales Company and James F. Rogers defendants. For simplicity, the International Sales Company and Milton Goldberger will hereinafter be referred to as defendant appellant, and the Universal Sales Company and James F. Rogers will be referred to as defendant-appellee. The plaintiff-appellee will be referred to as the Bank.

The Bank sets forth in its petition that defendant-appellant issued its check No. 428 in the amount of $561.46 payable to the defendant-appellee on August 8, 1947. That on August 9, 1947 defendant-appellant orally requested the bank to stop payment on said check and that on said same day, defendant-appellant sent a telegram to defendant-appellee, stating that payment upon said check had been stopped. That the bank sent a written confirmation of its “stop” order to defendant-appellant. This written confirmation provided that the bank should not be liable if said check should be paid through inadvertence, accident or oversight of the bank. The bank further sets forth that on August 11, 1947, through inadvertence, oversight and accident they made payment on said check. That on August 12, 1947, defendant-appellant issued its check No. 440 in the amount of $500.00 to the order of the defendant-appellee, and that on August 14, said check was paid.

The bank then sets forth that the commercial account maintained by the defendant-appellant was subject to the rules and regulations of the bank wherein the bank was not to be held liable on account of payment contrary to the “stop” payment requested if the same should occur through inadvertence, accident or oversight of the bank.

The bank then sets forth that the defendant-appellee claims that the defendant-appellant was indebted to said defendant-appellee in a sum greater than the amount of both said cheeks. The bank then prays that the Municipal Court declare the rights and liabilities of the parties hereto growing out of the payment of said two checks and that the court declare whether the bank’s failure to comply .with the “stop payment” order is excused by their rules and regulations and that the court completely settle the rights and liabilities of the parties growing out of the payment of said two checks.

The defendant-appellee filed its answer, setting forth substantially that the defendant-appellant was indebted to defendant-appellee in an amount greater than the sum of the two said checks, and prayed that the court declare and decree that there remain due and owing to the defendant-appellee from defendant-appellant the sum of $115.39.

Defendant-appellant filed two motions, one to quash service of summons in that there was no partnership known as International Sales Company, and the second to elect against whom to proceed, either the International Sales Company, a partnership, or Milton Goldberger, doing business as International Sales Company. Both motions were overruled.

Defendant-appellant then filed two answers., one answer to the answer of defendant-appellee denying defendant-appellee’s claim and the other being an answer to the bank, setting forth as its second defense that there was a prior action pending in the same court between the bank and the defendant-appellant wherein the defendant-appellant sued the bank for the amount of the first check, being in the amount of $541.46 or check No. 428.

Defendant-appellant filed an amended answer setting forth in the second defense, at greater length, the fact of the prior pending action, and praying that this action be dismissed, or, in the alternative, to render judgment for defendant-appellant.

Defendant-appellant then filed his motion to dismiss this action upon two grounds: (1) That there was a prior pending action upon the same cause of action and between the same parties wherein a jury trial had been demanded, and (2), that this cause is not a proper subject for declaratory judgment.

Defendant-appellee was granted leave to amend his answer which amendment increased the amount of indebtedness claimed ‘to be due and owing from defendant-appellant to defendant-appellee and praying for the court to declare and decree that there remains due and owing from defendant-appellant to defendant-appellee the sum of $661.60.

A demurrer to the second paragraph on page two of the amended answer of the defendant-appellee was filed by defendant-appellant, the paragraph referred to being in the words and figures following, to-wit:

■‘That at the time of the execution of both checks International Sales Company was indebted to Universal Sales Company in a sum greater than the combined amounts of both checks, and that International Sales Company still owes Universal Sales Company a balance upon an account, due and payable at the time both checks were issued.”

The court took the motion to dismiss and the demurrer under advisement, but in the meantime, the parties were ordered to trial, and trial was had before the court without a jury, on July 9, 1948.

On March 17, 1949, there was a finding and judgment for the Bank. On March 21, 1949, the entry of March 17, 1949, was corrected to read that judgment was also rendered for defendant-appellee against defendant-appellant in the amount of $661.60.

A motion for new trial was filed by defendant-appellant and the court was asked to dismiss the petition upon the ground of lack of jurisdiction, and was further asked for judgment notwithstanding the verdict.

On April 26, 1949, the court overruled the motion for new trial and for judgment notwithstanding the verdict. On the same date defendant-appellee’s motion to dismiss was overruled. On May 12, 1949, notice of appeal was filed, together with praecipe to the clerk. On May 24,1949, the transcript and original papers were filed in this court.

The appeal is based upon the errors apparent upon the face of the record. There is no bill of exceptions of the proceedings had in said cause in the Municipal Court.

The defendant-appellant assigns error in the following particulars:

1. The court lacked jurisdiction

(A) Declaratory judgments are not within the jurisdiction of the Municipal Court;

(B) Prior action pending.

2. Errors of law.

(A) Verdict and judgment of the court below are contrary to law.

(B) Overruling to motion to dismiss.

(C) Lack of jurisdiction.

3. For other errors apparent on the face of the record.

(A) Failure to grant judgment notwithstanding the verdict.

(B) Failure to rule on the motion to dismiss.

(C) Failure to rule on the demurrer.

(D) Defendant-appellant deprived of right to jury trial.

(E) Improper party defendant.

These assignments of error will be considered in the order above set forth.

1(a) Under this assignment of error, the defendant-appellant makes the general contention that declaratory judgments are not within the jurisdiction of the Municipal Court of Cleveland. He admits, however, that under the provisions of §12102-1 GC, that jurisdiction is conferred upon courts of record within their respective jurisdictions to declare rights, status and other legal relations whether or not further relief is or could be claimed; and further admits that the Municipal Court of Cleveland is a court of record, and concludes. that a court of record may grant a declaratory judgment if it stays within its jurisdiction and that the jurisdiction to which he refers relates to the subject-matter.

In the case of Soul, Receiver, v. Lockhart, 119 Oh St 393, the Supreme Court held that the only original, civil jurisdiction conferred upon the Cleveland Municipal Court is that found in §1579-6 GC, and that the sections following are merely supplementary or ancillary thereto, having for their object the conservation and enforcement of its original jurisdiction conferred by the foregoing section.

Under the provisions of Sub-division 3 of Section 1579-6 GC, original civil jurisdiction within the limits of the City of Cleveland is conferred on the Municipal Court in all actions on contract, express or implied, in law or in fact, when the amount claimed by the plaintiff does not exceed $5000.00.

The claim pleaded by the bank, for which it seeks a declaratory judgment, is one of the class recognized as coming within the money counts of general assumpsit, under the specific designation of either indebitatus assumpsit or indebitatus counts, for money paid to the defendant’s use.

The following comment is made with reference to this class of cases, in 4 American Jurisprudence, under the subject of Assumpsit in Section 10 at pages 499 and 500:

“As shown above, assumpsit will lie for the breach of an express contract or one implied in fact, but there is another large class of obligations, to enforce which the action of general assumpsit is a well-established remedy. The principle upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles derived from the civil law. This obligation was, under the civil law, designated ‘quasi contractus.’ Stated as a civil-law principle, it was an obligation similar in character to that of a contract, but which arose not from an agreement of parties, but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obligation springing from voluntary and lawful acts of parties in the .absence of any agreement. In quasi contracts, the obligation arises not from consent, as in the case of contracts, but from the law or natural equity. The class of obligations now under consideration, and which are treated in works on contracts as contracts implied in law, or quasi contracts, is recognized and enforced in common law courts by means of a general assumpsit. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention.”

Under the text on page 500 is a citation supporting the principles announced, as follows:

“The mythical creation of the law, called a quasi contract, was adopted for the purpose of enforcing a legal duty by an action in form ex contractu, but in reality in the nature of a bill of equity.” Schaeffer v. Miller, 41 Mont. 417, 109 P. 970, 137 Am. St. Rep. 746.

As the Municipal Court has jurisdiction in all actions on contracts “implied in law” it has jurisdiction to render judgments to declare the rights, status and other legal relations of the parties to such contracts.

Subdivision (a) of this assignment is therefore without merit.

1(b) Under this subdivision of assignment number one the defendant-appellant contends that by reason of the pendency of another action in the Municipal Court between the defendant-appellant and the bank, involving the same subject matter, the Municipal Court was without jurisdiction or power to render a declaratory judgment in the iiistant action.

As there is no bill of exceptions of the proceedings had by the trial court in the instant case, it does not affirmatively appear that there was another action in the Municipal Court pending between the parties, as contended by the defendant-appellant. In reviewing a case a court may only consider such errors as affirmatively appear of record, and as the claimed error does not affirmatively appear of record, the court will not consider it.

(2) Errors of law.

(a) Under this subdivision, the defendant-appellant discusses the question as to whether the bank may be relieved from liability in its failure to stop payment on the check, after notice had, by virtue of its rules and regulations.

As we are basing our opinion and decision in this case solely upon the proposition that the bank has pleaded, and, by virtue of the presumptions attending a judgment in its'favor in the trial court has proved that it has a counter-claim against defendant in the amount of the check paid by it after receipt of notice to stop payment, by way of a cause of action in general assumptsit under the money counts for money paid by it for the defendant’s use, it is unnecessary to discuss this subdivision of the second assignment of error.

2(b) Under this subdivision of the second assignment of error, the defendant-appellant charges error of the court in overruling the motion to dismiss.

The motion to dismiss was based upon the ground that the Municipal Court did not have jurisdiction of the subject-matter of the action for declaratory judgment, and upon the further ground that another action was pending between the parties in the Municipal Court, involving the same subject-matter.

We have heretofore held that the Municipal Court had jurisdiction of the action for declaratory judgment, and we have also ■ heretofore held that we cannot consider the pendency of any other action in the Municipal Court between the parties, as it does not appear in the record before us for review that any such action was pending.

For these reasons this subdivision of assignment number two is without merit.

2(c) Under this subdivision the defendant-appellant contends the Municipal Court did not have jurisdiction of the action.

We have already discussed this question and held that the Municipal Court had jurisdiction, so it is unnecessary to further discuss this assignment.

3. For other errors apparent on the face of the record.

3(a) Under this subdivision, the defendant-appellant again raises a question of the jurisdiction of the court, and also claims error of the court in not granting defendant-appellant judgment notwithstanding the verdict of the Municipal Court.

We have heretofore held that the court had jurisdiction and that the bank had proved a counter-claim to the claim of the defendant-appellee. It follows that the court properly overruled the motion to dismiss.

3(b) Under this subdivision of this assignment the defendant-appellant charges error in that the motion to dismiss was not ruled upon until after judgment had been rendered and after motion for new trial was filed.

The motion to dismiss was wholly without merit and the fact that it was not ruled upon until after judgment and after motion for new trial was filed, was not in any way prejudicial to the defendant-appellant.

3 (c)' Under this subdivision defendant-appellant charges error in the failure of the court to rule on demurrer referred to in the statement of facts, until six days after the filing of the notice of appeal.

The demurrer was wholly without merit and the failure to rule upon the same, as stated, was not in any way prejudicial to the defendant-appellant.

3(d) Under this subdivision the defendant-appellant charges error in that the trial court deprived him of his right to have his cause tried to a jury.

Under the statutes creating the Municipal Court of Cleveland and describing its functions and procedure, a jury trial may be had only upon demand made in the manner prescribed in the statutes.

While this case was purely a civil action at law and the defendant-appellant was entitled to trial by jury if he demanded such trial, the record does not show that he made such demand in conformity with the statute. Not having made such a demand there is no basis for his claim of error in the respect mentioned.

3(e) Under this subdivision the defendant-appellant charges error in the bank making defendant-appellee party defendant.

The defendant-appellee was a proper party defendant, as the bank, in order to establish the validity of its counterclaim concerning which it asked the declaration, had to establish that it paid the check of $561.46 in question, to a creditor of the defendant-appellant who had a valid and subsisting claim against defendant-appellant which was then due and payable, to show that such payment was made for the use of the defendant-appellant.

The general rule applicable to the substantive rights of the parties in the instant case, are as follows:

In general, if a creditor has received payment of his claim from some one other than the debtor, that other person can not recover the payment made to the creditor in the absence of some fraud or misrepresentation by the creditor. More specifically a bank which has by mistake paid a check on which payment has been stopped, cannot recover if the holder of the check acquired it in good faith and for value.

Restatement of the Law, Restitution, Sections 14 and 33.

With reference to the bank’s right to charge the appellant’s account, we quote from Section 162 of the same authority, which states:

“Where property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder.”

This section further states that a plaintiff asking for sub-rogation is not “officious” i. e., a volunteer, where the payment is made under mistake.

The general rule applicable to mistakes of this character is stated in Section 59 of the Restatement of the Law, as follows:

“A person who has conferred a benefit upon another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care.”

While Section 162 of Restatement of the Law refers to equitable actions for restitution, the principles enunciated apply with full force to actions based upon quasi contracts, for, as hereinbefore stated, the mythical creation of the law, called a quasi contract was adopted for the purpose of enforcing a legal duty by an action in form ex contractu, but in reality in the nature of a bill in equity.

The justice of the above principles is apparent. They correct the mistake if the holder of the check has been guilty of fraud in obtaining payment and prevent unjust enrichment of the maker if he stops payment.

Finding no error prejudicial to the defendant-appellant in any of the particulars assigned, the judgment of the Municipal Court is affirmed at the costs of the defendant-appellant. Exceptions noted.

MIDDLETON, J, DOYLE, J, concur.


author: By CROSSLAND, J:—

text:
    WATKINS, Plaintiff, v. COHEN, Defendant.
    Common Pleas Court, Muskingum County.
    No. 35176.
   OPINION

By CROSSLAND, J:—

Briefs of the parties have just now been submitted, so that until this time the court has not had the case under actual consideration.

The controversy in this case arises out of an action by plaintiff seeking to repossess premises leased defendant, on the ground that defendant has defaulted in a term of the lease respecting the amount of rent allegedly due plaintiff from and after August 27, 1946, and for judgment for the difference allegedly due to and including July 26, 1947, defendant in his Answer denying such default or indebtedness.

The controversy in both respects involves a difference of opinion between the parties as to the meaning in said lease of the phrase “for the duration of the present war and one year thereafter,” the lease, dated July 27, 1943, providing rent of $125 monthly “for the duration of the present war and one year thereafter”, and thereafter at $200 monthly for the five years following.

The premises concerned consist of a store room, basement and upper floors, at 321 Main Street, Zanesville, occupied and used by defendant as a Men’s Clothing business in the retail trade, from the beginning of said lease to date.

The parties in their testimony are in complete disagreement as to what each intended or contemplated in the use of the language in question. The court fails to find from the evidence any expressly declared meaning discussed at all between them either before or at the lease’s execution, and considers that any subsequent contention by either is obviously self-serving to their respective positions herein, and that any subsequent conversation is inadequate substitution for the absence of any prior discussion of the meaning to be ascribed.

It is therefore necessarily entirely a matter of what the law considers the parties intended by their language from the language itself under the attending and portending facts and circumstances.

The court further finds and considers that the parties are both in good faith in making and asserting their respective contentions and that the controversy represents an honest difference of opinion between them as to the meaning which should be given their language, and that the same constitutes a genuinely arguable and debatable question.

The court considers that the approach of the law in its definition of the meaning intended by the parties in their relationship with each other under said lease is one of a private business transaction between two business men regarding their personal business affairs, in which they join together for mutual and reciprocal profit, plaintiff contributing thereto his real estate and defendant a personally owned and managed business therein, neither property nor business being in any way related to the existing war effort or any government operation connected therewith. Said lease simply took cognizance of the fact that war then existed and that its duration presumably affected the capacity of the defendant, out of the business he might be expected to enjoy during the continuation of such situation and until a year afterward, to pay more than 5/8 of the amount of monthly rent he could and should pay if the country was in a state of peace instead of one of war, or, in other words, 5/8 of the sum to be paid monthly in time of peace, after one year for business transition from a country at war to one at peace, from a wartime to a peace-time economy.

Wh.a.t the parties were concerned with, from the nature and contemplation of their respective participations in said lease, was not a technical, governmental or political engagement of the United. States in its three wars with Germany, Italy and Japan, for in fact the matter of “wars” was not even alluded to. What both parties were concerned about was the actual existing state of war and the anticipated return of the United States to a factual siutation of peace, one conducive to normal peace-time business — a situation as factual as the facts of their respective operations, both of which contemplated peace, not war, as a measure and opportunity for enhanced business and augmented income. As defendant’s retail business prospered through the fact of peace so plaintiff’s rental income also and likewise was intended to prosper thereby. That, and that alone, was the natural, logical and therefore the intended contract between them, particularly in the absence of explicit words to the contrary, derived from the very nature of their respective operations and their mutual obvious anticipation of a peace-time economy.

“War”, as distinguished from this country’s three separate wars with Germany, Italy and Japan, was the then existing armed conflict into which our three current wars had precipitated us as a nation and people. The term “war” was used, therefore, in its generic sense in relation to our general wartime economy, and not in its strictly technical meaning as employed by the government in its relationships with other governments or in its prosecution of the national war effort in each of said three separate engagements.

Moreover, “the present war” was a fighting war, one of actual and employed hostility, in which all the resources of the participating nations were actively mobilized and used by their respective governments for the purpose of seeking to achieve military victory, which was finally attained by the United States and its allies on August 14, 1945.

Undoubtedly the only reason, or at any rate the chief reason, we have not long since had a government declared end of active warfare is not because the war endures, as it was known up to and only until August 14, 1945, but because warfare, that is, the faring or waging of war, was succeeded by what neither of the parties at the time and date of their said lease, to-wit, July 27, 1943, nor any one else at that time, or in fact no one until well after August 14, 1945, anticipated or contemplated and therefore could not and did not intend, to-wit, a state of “cold war”, as it is now commonly known and characterized. It is quite clear that there was no contemplation by the parties in their said lease of any so-called “cold war”, and “one year thereafter” could not possiMy nave been intended by them as having its inception at the conclusion of the now existing “cold war”. The present “cold war”, so-called, accounting for a situation unintended by either party, should not and can not modify or otherwise affect the terms of a lease, providing for rental increase after one year from the existing war situation of July 27, 1943, which ended August 14, 1945.

Adverting to what was said in an earlier paragraph that the positions of both parties-are honestly taken and advanced in good faith, the court denies forfeiture of the lease sought in plaintiff’s first cause of action herein unless defendant hereafter fails and refuses to pay the difference in rent claimed by plaintiff in his second cause of action, upon which plaintiff is entitled to judgment in the sum of $825, with interest thereon at the rate of six per cent per annum, and for plaintiff’s costs herein, with exceptions granted both parties; and a journal entry incorporating the findings and conclusions herein may be prepared by counsel for plaintiff and submitted to opposing counsel and then to the court for its approval and filing.


text:
    YARWOOD, Plaintiff-Appellant, v. DELAGE et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21531.
    Decided December 5, 1949.
    R. V. Greene, Willoughby, for plaintiff-appellant.
    J. J. Wodisky, Cleveland, for defendants-appellees.
    (GUERNSEY, PJ, MIDDLETON, J, of 3rd District: DOYLE,. J, of 9th District sitting by designation in 8th' District.)
   OPINION

By THE COURT:

In the agreed statement of facts upon which this case was submitted to the trial court, the court was warranted in finding that plaintiff had sold the vehicle in question and delivered the possession thereof to Richard Hiscott and that a certificate of title therefor was not at the time transferred to said Hiscott by reason of the fact that it was in the possession of The Cleveland Trust Company which had a chattel mortgage lien on said vehicle as security for a loan thereon.

Subsequent to the sale and transfer of possession of the vehicle to Hiscott, he, the said Hiscott, signed an affidavit before the Clerk of Courts of Geauga County, in which he fraudulently stated that he had assembled from parts a 1941 Pontiac Sedan bearing certain manufacturers’ serial numbers and motor numbers and in consequence thereof obtained a certificate of title from the said clerk for the automobile in question. On the next day he assigned his fraudulently obtained certificate of title to his wife, and a certificate of title was then issued to her by the Clerk of Courts of Geauga County. Following this transaction, the car passed through the hands of a number of persons and •organizations, each one securing possession and an assignment of the certificate of title of his predecessor. Finally the car was transferred to The Norton Motors Company and a certificate of title was issued in the name of Lawrence DeLage who had purchased for value the said vehicle from the said Norton Motors Company. The Norton Motors Company warranted the title to DeLage and as part of the purchase price, DeLage executed a promissory note which was duly assigned to the Associates Discount Corporation and a lien was accordingly noted on the certificate of title.

Of course, the present possessor of the car has no title to the vehicle for the reason that a valid title cannot, be resurrected out of the fraudulently obtained title given by the Clerk of Courts to Hiscott.

However, the present innocent purchaser of the car, as against Yarwood, the holder of the valid title, has actual ownership with possession and control, and although he does not have legal title, his right to a certificate of title from Yarwood is an enforceable right as would have beeri the right of Hiscott at the time these transactions commenced.

Under these circumstances replevin cannot secure the possession of the car for Yarwood. His claim is against his original purchaser.

The judgment is affirmed. Exc.

GUERNSEY, PJ, MIDDLETON, J, DOYLE, J, concur.