author: By HORNBECK, J.

text:
    BRONIKOWSKI, Admr., Plaintiff-Appellant, v. BIGHAM, Defendant-Appellee.
    Ohio Appeals, Second District, Madison County.
    Nos. 203, 204.
    Decided March 22, 1956.
    Edwin J. Lynch, Stanley A. Grzezinski, Toledo, Crabbe & Tanner, London, for plaintiffs-appellants.
    Richmond & Richmond, London, for defendant-appellee.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

The appeals are from judgments dismissing plaintiff’s second amended petitions after demurrers had been sustained thereto.

We hereinafter refer to case No. 203 only but as the cases are identical with the exception of the parties plaintiffs the judgment in this court will be the same in both cases.

The first branch of the demurrer is that plaintiff’s action was not brought within the time limited for the commencement of such action. The second branch of the demurrer is general.

The action was for the wrongful death of Jacqueline Bronikowski, a minor, who was drowned on July 11, 1952 in the night season. Action was first instituted in Seneca County, Ohio, on July 9, 1954, service of summons was attempted, but on September 27, 1954, was quashed. The action here under consideration was commenced November 1, 1954.

Plaintiff sets forth his cause of action in thirteen paragraphs in the second amended petition. He pleads that defendant, lessee of a farm described, permitted to exist on the farm an abandoned quarry filled with water to a depth of twenty feet, which was dangerous, without any warning to the puolic of its dangerous condition. That the quarry, so filled with water, was a nuisance which defendant wantonly, wilfully and intentionally permitted to exist on his farm. It is further specifically averred that:

“A suit involving above facts was filed in Seneca County, Ohio, and was dismissed without prejudice to a further action on the same facts as a result of a motion by defendant to quash the service of summons for the reason that said summons was left at a place which was not the usual place of residence of the defendant.”

Defendant in support of the first ground of the demurrer relies upon the two year statute of limitations applying in action for damages for wrongful death. Sec. 10509-167 GC (§2125.02 R. C.) Plaintiff relies upon the saving clause in §10509-169 GC (§2125.04 R. C.) but defendant insists that this latter statute may not be given application.

We do not deem it necessary to resort to case law to determine the question as to the commencement of the action raised by the first branch of the demurrer. The section of the Code, §10509-169 GC, authorizing an extender of one year in addition to the two years within which the action may be brought under §10509-167 GC, is in the alternative. The requisites to the right to the extender are (11 that the action be commenced or (2i attempted to be commenced, in due time, or when (1) or (21 has been observed, the petitioner has failed otherwise than upon the merits. The test as to the first two requisites is found in §11230 and §11231 GC (§2305.17 R. C.) which provide that an action is commenced, on the date of the summons on defendant. That an attempt to commence an action is accomplished when the petitioner diligently endeavors to procure a service, if such attempt is followed by service within sixty days. The purported service of summons on defendant having failed because it was quashed was a nullity. Therefore, neither essential (1) or (2) heretofore designated to the extender of time within which to file the action is met.

The cases cited by appellee support the action of the trial judge in sustaining the demurrer. Kossuth v. Baer, 161 Oh St 379 and Knight, Admx. v. Schlachter, et al, 28 Oh Ap 70. The second syllabus of the Kossuth case is based upon the grounds which we adopt in supporting the sustaining of the demurrer. The first syllabus goes further and holds that in the situation there developed the plaintiff cannot be considered as having failed “otherwise than upon the merits.” The cases cited by appellant all of which are found in Jacobs v. Haggerty, 97 Oh Ap 553 involved another Section of the Code and developments wherein parties had been subjected to the jurisdiction of the courts.

The second error assigned is that the Court erred in sustaining defendant’s demurrer on the ground that the second amended petition did not state a cause of action.

Upon any reasonable construction of the averments of the second amended petition it must be held that plaintiff’s decedent was a trespasser on the farm of the defendant. Judge Summers, in the second paragraph of Railroad Co. v. Harvey, 77 Oh St 235 sets out the obligation owing by the defendant to plaintiff’s decedent.

“The duty of the owner or occupier of land to persons coming upon it depends somewhat upon whether they are there by his invitation or permission. To invited persons it is his duty to exercise reasonable care for their safety; to licensees it is his duty to give notice of hidden dangers or traps, while trespassers, that is, persons entering without permission, assume the risk of injury from the condition of the premises and the duty of the occupier to them is only to be careful not to injure them by bringing force to bear upon them.”

Thus, it appears that as a trespasser or even though it may be said that plaintiff’s decedent was a licensee, plaintiff’s pleading does not state a cause of liability.

The case of Swarts v. Akron Water Works Co. reported with Railroad Co. v. Harvey, supra, presents facts analogous to though more favorable to the plaintiff than those pleaded in the instant case. At page 262, Judge Summers says “This case owes its existence to the doctrine of the turntable cases,” which doctrine is disapproved in the second syllabus. In the Swarts case, at page 268, quotation is made from Clark, Admr. v. Manchester, 62 N. H. 577 which is appropriate here.

“The excavation for a reservoir was not made and filled with water for a trap, but for a lawful use by the defendants on their own land. The averment of license and invitation to the child to go there is one of argument by inference from the facts stated, and the facts positively averred do not warrant and support the inference. The fact that children went to the reservoir pit from curiosity or from pleasure, without objection of the defendant, was not an invitation or license to go there. The child was not upon the land by invitation or under circumstances which made it the duty of defendant to protect him.”

The second amended petition does not state a cause of action and the demurrer thereto was properly sustained.

We have before us the written opinion of Judge Baynes of the Common Pleas Court on sustaining the demurrers and are in accord with it in all particulars.

Judgment affirmed.

MILLER, PJ, DEEDS, J, concur.


source: Caselaw Access Project

author: By HOY, J.:

license: Public Domain

text:
    HUNSCHE, Plaintiff, v. ALTER, Trustee, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-152656.
    Decided January 18, 1957.
    Morris G. Sullivan, for plaintiff.
    Rendigs, Pry & Kiely, for defendants.
   OPINION

By HOY, J.:

This cause is before the Court upon plaintiff’s motion for a rehearing on defendants’ demurrer to the petition.

In her petition plaintiff claims that while on her way to attend Mass at a Roman Catholic Church she fell when she stepped into a depression in the paved portion of a parking lot maintained by the church on its grounds. She claims that her fall and resulting injuries were proximately caused by the negligence of the trustee and pastor of the church in failing to maintain the parking area in a safe condition.

The Court has heretofore sustained a demurrer interposed by the defendants on the authority of Cullen v. Schmidt, 139 Oh St 194, but, since that time, the Supreme Court has announced its decision in the case of Avalonne v. St John’s Hospital, 165 Oh St 467, in which it expressly overrules Taylor v. Protestant Hospital Association, 85 Oh St 90; Rudy v. Lakeside Hospital, 115 Oh St 539, and paragraphs one and two of the syllabus of Lakeside Hospital v. Kovar, 131 Oh St 333, and holds that a charity hospital is liable for the torts of its servants under the doctrine of respondeat superior. Plaintiff contends that the rule announced by the court in the Avalonne case deprives nonprofit religious organizations, as well as charity hospitals, of the partial immunity from tort liability which both formerly enjoyed in this state and that this Court should, therefore, reverse its former ruling upon the demurrer.

In the situation in which this Court now finds itself it can only guess how far the Supreme Court intends to extend the doctrine of the Avalonne case.

We are aided to some extent, however, by a parallel situation which was presented in the case of Tumwater v. Evangelical Free Church, decided by the Supreme Court of Washington in 1955 and reported in 287 Pac. (2d) 128. In that case the plaintiff claimed that he had been injured by the negligence of the driver of a Sunday School bus which was being operated on behalf of the defendant church, and the trial court dismissed the action on the ground that the church was immune to tort liability. For many years prior to the decision of the Supreme Court of Washington, in the case of Pierce v. Yakima Valley Memorial Hospital Assn. 260 Pac. (2d) 765, it had been the settled law of that state that a benevolent, religious or charitable institution was not liable for torts committed by its servants against a patron, in the absence of a showing that it had failed to exercise reasonable care in the selection or retention of the servant. In the Pierce case, however, the Washington court reversed its former holdings just as the Supreme Court of Ohio did in the Avalonne case, and decreed that charity hospitals should no longer enjoy immunity and when the Tumwater case reached it, it was forced to decide how far it would extend the doctrine announced in the Pierce case. In declining to extend the Pierce doctrine to non-profit religious organizations the Court used the following language:

“Appellant contends that the rule of charitable immunity has been rejected by the Pierce case, and that therefore the doctrine of respondeat superior applies to ecclesiastical bodies. That case did not reject the rule of charitable immunity, but merely modified it. There was only one question before us in the Pierce case, and it was stated in the first paragraph thereof:
“ ‘Where a paying patient of a charitable non-profit hospital sustains injuries by reason of the negligence of a nurse, may such patient recover damages from the hospital?’ We held that such an institution ‘should no longer be held immune from- liability for injuries to paying patients caused by the negligence of employees of the hospital.’ We do not wish to extend the above holding to apply to a nonprofit, religious organization which transports children, without charge, to and from Sunday school in order that they may receive a spiritual education and eventually become members of a church organization.”

It is true that the Washington court fails to set forth the grounds upon which it distinguishes churches from hospitals. It simply announces that it will not extend the new rule to churches. However, there are obvious distinctions which it might have drawn. It is a matter of common knowledge that the operation of charity hospitals has undergone radical and profound changes in recent years.. Prior to the advent of hospital care insurance a large number of hospital patients were unable to pay for hospital care, whereas today practically every hospital patient has some type of hospital insurance and a true charity case is a rarity in the average modern charity hospital. This changed situation has required a change in public policy with respect to charity hospitals and has prompted the courts of a number of states (including Ohio) to reconsider the question of tort immunity for such institutions. No such change has occurred, however, in the operation of non-profit religious organizations and the reasons which prompted the courts to grant partial immunity to them on the basis of sound public policy in the past still exist.

I am persuaded, therefore, that the doctrine announced by our Supreme Court in the Avalonne case should not be extended to non-profit religious organizations and will adhere to my former ruling upon the demurrer.


author: By PHILLIPS, PJ.

text:
    KENDALL, Plaintiff-Appellant, v. ADMINISTRATOR AND BOARD OF REVIEW, BUREAU OF UNEMPLOYMENT COMPENSATION AND SHARON STEEL CORPORATION, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3841.
    Decided April 5, 1956.
    Traxler & Beil, Youngstown, for plaintiff-appellant.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellees, Sharon Steel Corporation. •
   OPINION

By PHILLIPS, PJ.

The Administrator of the Board of Review of the Bureau of Unemployment Compensation denied plaintiff the right to receive unemployment compensation.

On appeal to the court of common pleas filed on December 29, 1954, that court held that plaintiff was entitled to such benefits, and reversed the finding and judgment of the Administrator and Board of Review of the Bureau of Unemployment Compensation.

On June 30, 1955, the trial judge sustained the motion of defendant, Sharon Steel Corporation, to vacate its judgment of reversal, to grant it leave to become party defendant, file an answer, and to brief and argue the appeal.

By answer defendant, Sharon Steel Corporation challenged the jurisdiction of the trial court to the appeal on the ground that plaintiff had not served it with notice of his appeal within thirty days of his receipt of the decision of the Board of Review, which motion the trial judge sustained and dismissed plaintiff’s appeal solely on the ground stated in the motion.

By brief plaintiff inquires:—

“Is the failure to make a base period employer a party appellee and to mail said employer a copy of the notice of appeal within thirty days after receiving the decision of the Board of Review jurisdictional?
“May the failure to serve a copy of the notice of appeal on an ap-pellee within thirty days after filing same be corrected subsequent to said thirty day period?”

As applicable §4141.28 R. C., provides:—

“* * * Such appeal shall be taken within such thirty days by the appellant by filing a notice of appeal with the clerk of the court of common pleas, with the board, and upon all appellees by registered mail to their last known post-office address. Such notice of appeal shall set forth the decision appealed from and the errors therein complained of. Proof of the filing of such notice with the board shall be filed with the clerk. All other interested parties before the board or the referee shall be made appellees.”

In Joy Manufacturing Co. v. Albaugh, 159 Oh St 460 at 463, cited by the trial judge, the court said in quoting from Zier v. Bureau of Unemployment Compensation, 151 Oh St 123:—

“ * * compliance with the requirements as to the filing of the notice of appeal — the time of filing, the place of filing and the content of the notice as specified in the statute — are all conditions precedent to jurisdiction.’
“* * * The view expressed in the Zier case is consistent with the following provision of §12223-4 GC, relating to appellate procedure generally:
“ ‘The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court, tribunal, officer or commission. * * * After being duly perfected, * * * no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional.’ ”

The trial judge said in his unusually well written opinion, which this opinion is intended to fortify and for which reason it is solely written:—

“The latest pronouncement of our Supreme Court on the statutory right of appeal is in Valves, Inc. v. Peck, 161 Oh St at page 581 where it cites with approval: ‘Where a statute confers the right of appeal, adherence to the conditions thereby imposed is essential to the enjoyment of the right conferred. “The party who seeks to exercise this right, must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.” ’ ”

This court holds as the trial judge held:—

since the amendment to §4141.28 K. C., which governs this proceeding, the failure to file notice of appeal on all appellees made so by the statutory amendment is a failure to perfect the appeal, is a noncompliance with a mandatory provision of the appeal statute, and that this court, therefore, has no jurisdiction to hear the same.”

Since the parties could not confer jurisdiction upon the court of common pleas by consent we find no merit to plaintiff’s claim that since defendant steel company was made a party on its motion and filed an answer that thereby jurisdiction was conferred on the trial court. See O. Jur., Volume 2, Page 702, Section 62.

The judgment of the court of common pleas is affirmed.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By BAYNES, J.

text:
    VANCE et, Plaintiffs, v. BYERLY et, Defendants.
    Common Pleas Court, Madison County.
    No. 20394.
    Decided February 6, 1957.

      William S. Culp, Forrest E. Sidener, Jr., for plaintiffs.
    Jackman, Nichols & Grubbs, Crabbe & Tanner, Administrator for Oliver Byerly,. for defendants.
   OPINION

By BAYNES, J.

Plaintiffs seek a declaration in equity that the purported probate of a will in the Probate Court of this county be held void and the same be vacated.

Only the defendant Carl Byerly as executor and individually has answered. All other defendants are in default for answer or other pleading. Plaintiff demurs to the first and second defenses. The answering defendant admits in his first defense.

(1) That Rozella Eycrly died January 20, 1955.

(2) That her only heirs and next of kin were Shirley Ann Vance, Carl Byerly, Imer Byerly, John Byerly, Oliver Byerly and Beatrice A. Culp.

(3) That Homer Byerly, deceased son of Rozella Byerly, died September 7, 1938, leaving surviving him the defendant Beatrice A. Culp, his daughter, and Shirley Ann Vance, his legally adopted daughter.

(4) That both defendants, Beatrice A. Culp and Shirley Ann Vance survived Rozella Byerly deceased.

(5) That the said Shirley Ann Vance was legally adopted by the said Homer Byerly as stated in the petition.

(6) That the said Shirley Ann Vance was resident of and resided in the State of Ohio at the time of the death of said Rozella Byerly, deceased, and at all times since the adoption of said Shirley Ann Vance.

(7) That her (Shirley Ann Vance) residence was known by Carl Byerly to be in the State of Ohio.

(8) That Carl Byerly made application to admit to probate and record an instrument purporting to be the last will of Rozella Byerly, deceased, in which application the name of Shirley Ann Vance as one of the heirs at law of said decedent, resident of the State of Ohio, was pot mentioned.

(9) That notices of the filing of said application and of the hearing in the probate of said will were given to all of the heirs at law of said decedent except said Shirley Ann Vance.

(10) That at no time did said Shirley Ann Vance waive the issuance or service of such notice.

(11) That on March 21, 1955, said will was admitted to probate.

Otherwise he denies the allegations of the petition, which standing alone, would require the plaintiffs to introduce evidence of their capacity to sue. That is that they are parties in interest and succeed to all the rights of Shirley Ann Vance.

However the second defense impliedly recognizes that plaintiff James C. Vance was the husband of and is the surviving spouse of Shirley Ann Vance deceased and the capacity of the alleged children as, “the persons claiming through her (Shirley Ann Vance).”

We therefore hold that for purposes of the demurrer the answer admits the capacity of the plaintiffs to sue. So that sustaining or overruling the demurrer stands or fails on whether the allegations of the second defense are sufficient in law to constitute a defense.

We limit our inquiry on estoppel and laches as to acts of the deceased Shirley Ann Vance for the reason that if either could be applied to her, plaintiffs would be bound, otherwise not. This for the reason that there are no affirmative allegations of any acts on the part of any of plaintiffs which would constitute estoppel or laches.

Sec. 2107.13 U. C., provides:

“No will shall be admitted to Probate without notice to the surviving spouse and to the persons known to be residents of the state who would be entitled to inherit from testator under §§2105.01 to 2105.21, inclusive, R. C., if he had died intestate. . . .

The words, “known to be,” have been added since 1930, the year Scholl v. Scholl, 123 Oh St 1, 173 N. E. 305, report was rendered. It was there held that the notice required was mandatory and jurisdictional. That the probate of a will without notice to those entitled, who did not receive or waive notice was void. Lastly, knowledge of death and order of probate will not estop plaintiff where proponents are not prejudiced, cf. In re Estate of Bowles, 96 Oh Ap 265, 54 O. O. 301, 66 Abs 83, 114 N. E. 2d 229; In re Estate of Hammer, 99 Oh Ap 1. 58 O. O. 104, 130 N. E. 2d 437. See also Page on Wills V. 2, 127, Sec. 598.

The element of time is the only allegation for the defense of estoppel or laches, that is the will was admitted to probate on 21 March 1955 and this petition was not filed until 22 September 1956. It will also be noted that Shirley Ann Vance died on 23 June 1955 or three months subsequent to the time the will was admitted to probate. Even the six months had not elapsed for the contest of the will (§2107.23 R. C.) which was only half expired at the date of Shirley Ann Vance’s death.

There is no allegation that the answering defendant was mislead or delayed by the silence of Shirley Ann Vance or induced to take any course of action which he would otherwise not have taken or that he was prejudiced in any way. It is suggested, by the way of dictum in the Scholl case, that if expenditures and disbursements were made on the face of plaintiffs’ silence because a claim against probate was not made earlier, such can be asserted when final distribution is made.

Whether or not this can be asserted by the answering defendant against the minor plaintiffs, if made, will be a matter for the Probate Court to decide.

Obviously the confusion with respect to whether Shirley Ann Vance was a next of kin and entitled to notice arose by reason of the past amendments to and present wording of §3107.13 R. C., relating to legal rights of adopted children. S'ee In re Estate Miiiward, 136 N. E. 2d 649. Although, needless to say, none of the parties in this case refer to this in their memorandum.

We treat the demurrer as a motion for judgment on the pleadings. A decree may be drawn accordingly in conformance to this opinion by plaintiffs’ counsel according to Court Rule. A certified copy of same is to be filed with the Probate Court of Madison County by plaintiffs’ counsel with cost bill attached.


author: By ALLEN, J.

text:
    NIEPERT, Executor, Appellant, v. CLEVELAND ELECTRIC ILLUMINATING COMPANY, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12883.
    Decided March 1, 1957.
    Fred D. Shapiro, Cleveland, Theodore T. Sindell, of Sindell, Sindell & Bourne, Cleveland, for appellant.
    George I. Meisel, of Squire, Sanders & Dempsey, Cleveland, for ap-pellee.
    Before SIMONS, Chief Judge, and ALLEN and STEPHENS, Circuit Judges.

      Albert Lee Stephens of the Ninth Circuit.

   OPINION

By ALLEN, J.

This appeal arises out of a libel instituted against defendant for wrongful death of libelant’s wife and for damage to libelant’s motor boat alleged to have been caused by the negligence of respondent in creating a hazard to navigation by extending a pier over 1,200 feet into Lake Erie without adequate lighting. The findings of fact of the District Court, which the parties stipulate are true and accurate, are printed in the margin. The District Court held that the rule of division of damages which controls in admiralty cases, 46 U. S. C. Section 768, 46 U. S. C. A. §766, was applicable to the loss of respondent’s motor boat. The court found the value of the boat to be $5,000 and gave judgment for libelant for $2,500. However, the right to recover for the death of libelant’s wife was denied upon the ground that respondent was guilty of contributory negligence in that with full knowledge of the existence of the pier and its position in Lake Erie he failed to check his speed in approaching the pier. The court denied recovery upon this phase of the case for the reason that the Ohio rule of contributory negligence was applicable and therefore the action was barred. Purdy v. Kerentoff, 152 Oh St 391, 40 O. O. 398, 396, 89 N. E. (2d) 565.

The sole question presented is whether the District Court erred in applying Ohio substantive law in an admiralty proceeding. The court concluded that the right of recovery for wrongful, death was a -state-created right and not a right rooted in maritime law and that therefore the state substantive law controlled. The libelant, while conceding that the remedy supplied by a state wrongful death statute may be borrowed by a federal court in an admiralty proceeding, contends that only the remedy may be borrowed and not the substantive common law of the state. He urges that the Ohio common-law rule that a finding of con-tributary negligence bars libelant’s claim herein cannot prevail over the admiralty rule of comparative damages. In support of this contention he cites holdings of the Supreme Court of the United States in cases not involving wrongful death, in which the admiralty rule of division of damages is approved and stressed. Cf. The Max Morris v. Curry, 137 U. S. 1, 14, 15, 11 S. Ct. 29, 34 L. Ed. 586; Pope & Talbot, Inc. v. Hawn, 346 U. S. 406, 74 S. Ct. 202, 205, 98 L. Ed. 143. The following language in the Pope & Talbot case, libelant contends, requires reversal:

“While states may sometimes supplement federal maritime policies, a state may not deprive a person of any substantial admiralty rights as defined in controlling acts of Congress or by interpretative decisions of this Court.”

This argument is premised upon the assumption that libelant is deprived here of substantial admiralty rights as defined by Congress or by the Supreme Court of the United States. We think the instant case does not involve such a deprivation.

The Supreme Court has repeatedly held that the maritime law does not allow recovery for wrongful death. The Harrisburg, 119 U. S. 199, 213, 7 S. Ct. 140, 30 L. Ed. 358; Western Fuel Co. v. Garcia, 257 U. S. 233, 240, 42 S. Ct. 89, 66 L. Ed. 210; Levison v. Deupree, 345 U. S. 648, 73 S. Ct. 914, 97 L. Ed. 1319, announced in 1953. In order to provide a remedy for wrongful death on the high seas, in 1920 Congress enacted such legislation covering the high seas, 46 U. S. C. Section 761, 46 U. S. C. A. §761. This statute expressly excluded an action for wrongful death within a league from the shore of any state. The instant case arose within a league from the shore line of Lake Erie. While 46 U. S. C., Chapter 21, 46 U. S. C. A. §761 et seq., provides, in accordance with the general maritime law, that contributory negligence shall not bar recovery but shall only mitigate damages (46 U. S. C. Section 766, 46 U. S. C. A. §766), Section 767 of the same statute excludes the Great Lakes from the area covered by the chapter. It reads as follows:

“The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter. Nor shall this chapter apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone.”

Section 767 expressly retains the action and remedies for death as they exist in state statutes, but excludes, under the circumstances of this case, the provisions as to comparative negligence. Senate Report No. 216 of Senate Reports, Vol. 1, Miscellaneous, stated the purpose of this enactment as follows:

“The present bill is designed to remedy this situation by giving a right of action for death, to be enforced in the courts of admiralty, both- in rem and in personam. The right is made exclusive for deaths on the high seas, leaving unimpaired the rights under State statutes as to deaths on waters within the territorial jurisdiction of the States.”

That part of Lake Erie upon which the accident occurred is within the territorial jurisdiction of the State of Ohio. 5 U. S. Statutes at Large 49; Edson v. Crangle, 62 Oh St 49, 56 N. E. 647.

The debates on the subject in Congress, including Reports of the Senate and House Committees on the Judiciary (66th Congress, Second Session, 1919-1920, Senate Reports Volume 1, Miscellaneous, Report No. 674), together with statements made by the Chairman and members of the Judiciary Committee of the House, at the time of the passage of 46 U. S. C., Chapter 21, 46 U. S. C. A. §761 et seq., Congressional Record, Volume 59, Part 5, 66-th Congress, Second Session, conclusively show that as to wrongful death on the Great Lakes the situation was to remain unchanged. The cause of action for death or the right to recover for death was to be pleaded under the state statutes.

It is true, as pointed out by this court in Pioneer Steamship Co. v. Hill, 227 P. (2d) 262, 263, that the class of workers who may avail themselves of the admiralty doctrine of seaworthiness in cases of maritime tort not resulting in death has been broadened. Pope & Talbot, Inc. v. Hawn, supra, 346 U. S. 412, 74 S. Ct. 206. In that case a carpenter employed by an independent contractor and in no sense a seaman, who was working on a ship berthed in navigable waters, was held not to be barred by contributory negligence and to be entitled to recover under the comparative damages rule of admiralty. But this doctrine does not extend to a wrongful death action occurring on one of the Great Lakes so as to eliminate substantive state law retained by the Congress as applicable in such cases.

If we read Pope & Talbot, Inc. v. Hawn, supra, correctly, it does not require the lower courts, against the deliberate enactment of the Congress, to apply the admiralty rule of contributory negligence in an accident occurring on waters from which Congress expressly excluded both the right and the remedy for wrongful death provided for the high seas in 46 U. S. C., Chapter 21, 46 U. S. C. A. §761 et seq. The case of Cox v. Roth, 348 U. S. 207, 75 S. Ct. 242, 99 L. Ed. 260, relied on by libelant does not affect this view. It did not overrule the prior decisions such as Western Fuel Co. v. Garcia, supra, with reference to the wrongful death action nor supersede the statutes of Congress pertaining thereto. The principal question presented in Cox v. Roth, supra, was whether an action under the Jones Act. 46 U. S. C. Section 688, 46 U. S. C. A. §688, survives the death of a tort-feasor. The Cox case was not predicated upon any state statute and, since the Supreme Court had before it no question of a state-created right, we think it has no bearing here.

Since the right of recovery for wrongful death occurring on the Great Lakes was created by state law and not by Congressional legislation or by court decision, the District Court correctly held that substantive defenses existing under state law. such as contributory negligence, applied. This is the law long established in this court. Robinson v. Detroit & C. Steam Navigation Co., 6 Cir., 73 F. 883: Feige v. Hurley, 6 Cir., 89 F. (2d) 575; Hutchinson v. Dickie, 6 Cir., 162 F. (2d) 103, 108; Lee v. Pure Oil Co.. 6 Cir., 218 F. (2d) 711, 714. The decisions in Pioneer Steamship Co. v. Hill, supra, and Im"> Frank Drlik, 6 Cir., 234 F. (2d) 4, did not involve wrongful death actions based upon state statutes. In each case a maritime tort was presented and the state law did not control.

In accordance with our conclusion herein is Levinson v. Deupree, supra, in which the Supreme Court, affirming a decision of this court in 199 F. (2d) 760, held that the admiralty court in enforcing a state statute giving a cause of action for wrongful death must look to the local law for its substantive rules. The common-law defense of contributory negligence, having become part of the Ohio substantive law with reference to wrongful death, was rightly applied by the District Court.

The judgment of the District Court is affirmed.

      . The parties will be designated as in the court below.

      . 1. On October 3, 1953, at about 10:00 o’clock P. M„ a 28-foot Gar Wood type motor boat, owned and operated by libellant, collided with a nearly completed pier which was being built for respondent in the navigable waters of Lake Erie near Eastlake, Ohio, which collision resulted in the death of libellant’s wife, Dorothy Niepert, and the sinking and complete loss and destruction of libellant’s said boat.
      2. The pier extended from the shore into the waters of Lake Erie a distance of 1200 to 1300 feet, and projected from six to seven feet above the surface of said waters, thereby constituting an obstruction and hazard to navigation, especially to small craft such as libellant’s boat.
      3. At the time of the collision the pier was nearly completed. The construction was being done for respondent by the Great Lakes Dredge & Dock Company. Permanent lighting for the pier was included in the construction plans and had been approved by the United States Coast Guard, but at the time the collision occurred, its installation had not been completed.
      4. At the time of the collision, the lighting on the pier consisted of a temporary light of a type supplied and approved by the contractor, located on a pole at the end of the pier. While the United States Coast Guard did not recommend any certain type of light for temporary lighting, it did require that such a light be visible from all essential horizons. The light provided was not visible from all essential horizons.
      5. Under all of the circumstances the temporary lighting provided on the pier was not adequate. The failure of the respondent adequately to light the pier, while neither willful, reckless, nor wanton, did constitute a breach of duty, or fault, upon the part of respondent which proximately brought about the accident and the consequent death of the libellant’s wife.
      6. On the night of the collision, the Lake was calm, but the night was very dark. There was no mist, fog or other similar obstruction to visibility.
      7. Prior to the time of the collision libellant knew of the existence and approximate location of the pier. He had made four trips past the pier before the day of the collision, at least once at night and three times in the day. He had passed by the pier twice in the afternoon of the day of the accident. Libellant also knew that respondent maintained a power plant on the shore from which the pier jutted out into the water.

        8. Libellant was an experienced amateur lake boatsman with 25 years’ experience in operating small boats on Lake Erie. As he approached the vicinity of the pier, libellant and Wick, a passenger in the boat, saw the lights of respondent’s power plant on the shore, knew they were in the vicinity of the pier, and discussed its probable location. They also discussed the lights from a barge which Wick had on all previous occasions seen east of the pier. Despite libellant’s knowledge that he was in the vicinity of the pier, he proceeded ahead, reducing the speed of his boat only from 15 to 16 miles per hour to 12 to 14 miles per hour. He looked for the light on the pier, but despite the fact that he did not see it and that, as he testified, he knew he was in a situation requiring the utmost care, he proceeded at the same rate of speed until he first discovered the pier 20 feet ahead of him, when he swerved his boat, too late to avoid a collision.
      9. Libellant failed to exercise ordinary care under all of the circumstances prevailing, and such negligence proximately contributed to the loss of his boat and the death of his wife.
      10. The negligence of both the libellant and the respondent jointly contributed directly to the loss of libellant’s boat and the death of libellant’s wife.
      11. The fair and reasonable value of libellant’s boat at the time of its loss, under the only evidence introduced, was $5,000.00.
      12. This action to recover damages for the death of libellant’s wife is brought by libellant as the personal representative of the decedent to recover the pecuniary loss suffered by libellant, and James E. Boast, her adult son, who together are the only surviving next of kin of the decedent. No evidence was offered tending to prove that James E. Boast suffered any pecuniary loss on account of the death of libellant’s wife and it is, therefore, found that no such loss was suffered. No finding is made as to the pecuniary loss, if any, suffered by libellant on account of the death of his wife because it is found that libellant cannot recover therefor on other grounds.


author: By MILLER, Presiding Judge:

text:
    HOBART, In re.
    Ohio Appeals, Second District, Miami County.
    No. 510.
    Decided October 30, 1956.
    Robert S. Miller, Ellis W. Kerr, Troy, for applicant-appellee, Rachel Elizabeth Hobart.
    Paul G. Gingrich, Baird Broomhall, Faust & Harrelson, Troy, for respondent-appellant, Charles C. Hobart.
   OPINION

By MILLER, Presiding Judge:

This is a law appeal from a judgment of the Probate Court of Miami County ordering that Elizabeth Beatrice Hobart, whom we will hereafter refer to as the child, be committed to the Dayton State Hospital and placed in the custody of the Superintendent thereof for such care and treatment as the medical staff may deem appropriate

The record discloses that on January 1, 1952, an affidavit was duly filed by Rachel Elizabeth Hobart, mother of the child, alleging that she was mentally ill. All statutory requirements were duly complied With and on May 2, 1952, a hearing was had and the court found that said child was mentally ill and in need of special care and treatment and ordered her committed to the Miami Valley Hospital. Upon application for review she was later committed to the Harding Sanitarium. Several more reviews were had and then on June 2, 1955, the court again ordered that a review of the custodial order be held. The cause then came on for hearing on said motion on March 10, 1956, at which time the court found that appellant’s motion was not well taken and should be overruled; that all former custodial orders be vacated and that said child be committed to the Dayton State Hospital.

The appeal is being prosecuted by said Charles C. Hobart, father of the child, who alleges that he is the natural guardian and next friend of his daughter. The mother, who has been designated as the applicant-appellee, is urging through her counsel that the court properly overruled the appellant’s motion. The right of the appellant to prosecute this appeal might be questioned, since he is not a lawfully appointed guardian, but since this question has not been raised, we will express no opinion on the same.

The first three assignments of error relate to the alleged errors in finding that the child was mentally ill on May 2, 1952 Clearly, the time for prosecuting these alleged errors is long past and this Court has no jurisdiction to entertain them.

The fourth assignment of error appears to be the principal one relied upon by the appellant, to-wit:

“4. The court erred in placing Elizabeth Eeatrice Hobart in the custody of Dr. George W. Harding, Columbus, Ohio, and others during the four years last past and in failing to order her placed in the custody, care and control of her father, Charles C. Hobart.”

It may not be questioned that the court had the authority to make the commitment upon its being satisfied that said child was mentally ill and in need of specialized care, for it is so provided in §5123.23 R. C. The power is a discretionary one and may not be disturbed unless there has been an abuse of the same.

We have reviewed the- entire record and conclude that under the evidence the trial judge had the right to find that the child is mentally ill and that its best interests require that it be hospitalized. It is only in the exercise of a fatherly instinct, for which he should be commended, that the father desires the child be kept out of a public institution and turned over to him for custody and control. However, he has presented no plan which appears to be feasible and for the best interests of the child. Therefore, the court did not abuse the discretion accorded to it under the cited section of the Revised Code.

We find no error in the record and the judgment will be affirmed.

HORNBECK; and WISEMAN, JJ, concur.


text:
    CALABRET, Plaintiff-Appellant, v. VIVACQUA, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3827.
    Decided March 27, 1956.
    Leda C. Hartwell, Youngstown, for plaintiff-appellant.
    Don Hanni, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

In plaintiff’s action filed in the Municipal Court of Youngstown to recover money allegedly loaned by plaintiff to defendant the trial judge sustained defendant’s motion to discharge an order of attachment issued upon plaintiff’s affidavit that defendant was about to remove and dispose of his property with intent to defraud his creditors. Such motion was sustained for the reason and on the ground that defendant had committed no overt act in any way disposing of his property nor removing it from the jurisdiction of the court.

Plaintiff appealed from the order of the trial court to this court on questions of law.

Plaintiff contends by assignments of error, oral arguments and brief, that:—

“1. The court erred in vacating and discharging the order of attachment.
“2. That said order of the court discharging said attachment is contrary to law.
“3. That the order of the court is contrary to all the evidence and said order is not sustained by any evidence.
“4. Other errors of law occurring at the trial.”

Plaintiff states by brief:—

“The sole issue presented is that the trial court erred in dismissing and vacating an attachment of an automobile where no evidence was offered by the defendant and the plaintiff’s uncontradicted evidence showed that defendant had threatened to dispose of said automobile and conceal all his other property, quit his job and go back to gambling so that any judgment plaintiff might obtain could not be satisfied.”

Plaintiff further states by brief:—

“It is not necessary that there be an overt act of defendant to sustain an order of attachment made on an affidavit that defendant is about to remove or conceal his property where three witnesses have testified that he threatened to do so and no evidence is offered on behalf of defendant.”

Such statement was not contradicted.

Further plaintiff contends that if the intent to dispose of property is proven that is all that is necessary to bring the plaintiff within the provisions of subsections F and H of §1911.21 R. C., in which contention we concur.

It is not necessary to show an overt act. Threats to dispose of debtor’s property to prevent the collection of the debt is sufficient to show intent under §2715.01 R. C. Judgment reversed because contrary to law.

NICHOLS and GRIFFITH, JJ, concur in judgment.


author: By GESSAMAN, J.-

text:
    BANKS, Admrx., Plaintiff, v. BALTIMORE AND OHIO RAILROAD CO. et, Defendants.
    Common Pleas Court, Franklin County.
    Nos. 190711, 190712.
    Decided May 28, 1957.

      James F. Little, for plaintiff.
    Alexander, Ebinger & Wenger, for defendant, The Baltimore and Ohio Ry. Co.
   OPINION

By GESSAMAN, J.-

These two cases arose from a collision which occurred at the West Mound Street crossing of the Baltimore and Ohio Railroad Company in the City of Columbus. The collision occurred on March 8, 1854, in the early morning hours and involved an automobile driven by George Commodore and a freight train operated by employees of the defendant, The Baltimore and Ohio Railroad Company. The personal representatives of two of the passengers in the automobile filed these actions against the defendant Railroad Company and the estate of the driver, George Commodore. The only respect in which the plaintiffs claim that the defendant, The Baltimore and Ohio Railroad Company was negligent, is that it operated its train at the crossing at a speed of 25 miles per hour. This rate of speed is alleged to be negligence by virtue of two ordinances of the City of Columbus which were in effect at the time in question, namely, Section 36.2 and 36.3 of the Columbus Code of 1952. The first of these two sections limited the speed of trains at grade crossings to 8 miles per hour and the second one limited the speed of freight trains to 12 miles per hour throughout the entire city.

The second defense of the Railroad Company’s second Amended Answer in each case, raises the issue of the validity of the ordinances. The Railroad Company admits the ordinances were in effect on the date in question but challenges their validity and alleges that they were unnecessary, unreasonable, discriminatory, arbitrary, and an unconstitutional burden upon Interstate Commerce.

At pre-trial it was agreed by counsel for plaintiff and counsel for defendant Railroad Company that the questions raised by the second defense of the second Amended Answers of the Railroad Company would be submitted to the Court, prior to the trial of the case upon its merits. An agreed entry to that effect was subsequently approved by the Court in each case. Subsequently in each case, counsel for the plaintiffs filed a motion to strike the second defense from the second Amended Answer. Therefore, the questions raised by the second defense in each of the second amended answers are now submitted to this branch of the court. Evidence pertinent to these questions was presented to the Court by the Railroad Company. No evidence was offered by counsel for the plaintiffs. This procedure is in conformity with that outlined by the Supreme Court in the case of Toledo, Columbus and Ohio River Railroad Company v. Miller, 108 Oh St 388. in the second syllabus which reads as follows:

“2. The constitutionality and reasonableness of a municipal ordinance regulating the speed of trains are questions of law for the court to decide, and to justify declaring void an ordinance limiting the speed of trains within a municipality its unreasonableness, or want of necessity as a police regulation for the protection of life and property, must be clear and manifest.”

The factors to be considered and the tests to be applied are not only outlined but fully discussed in the case of Cleveland, Cincinnati, Chicago and St. Louis Railway Co. v. Grambo, Sr., Adm., 103 Oh St 471. First, we call attention to the third and fourth syllabi which are as follows:

“3. An ordinance regulating the speed of trains through a municipality, enacted under the exercise of police power, which conforms to the limitations prescribed by the legislature, is presumptively reasonable and valid, and not in conflict with the state or federal constitutions. But the presumption may be rebutted, and in order to overcome such presumption a railway company must affirmatively show its unreasonableness.
“4. Where a city speed ordinance is pleaded as an element of negligence charged in a personal injury case, and the defendant by way of defense admits the existence of the ordinance, but denies its validity, setting out facts which if true would tend to show the ordinance to be unreasonable in its application to the facts of the case, the action of the court in sustaining a motion to strike out such matters is error.”

Secondly, we incorporate herein the language of Judge Hough, who wrote the opinion, found on pps. 480 to 487 of the opinion:

“The validity of the ordinance is therefore raised in a number of ways. If the ordinance was valid, the court correctly charged, following the rule of law announced in the case of Schell v. DuBois, Admr., 94 Oh St 93. And further, if valid, the action of the court in sustaining the motion to strike out was properly taken. But, if the ordinance was invalid, or if the defense tendered thereto in the amended answer was good, then the charge of the court as given was improper, and the disposition of the motion was also improper, and would be the basis of error.
“The reply admits that the company is engaged in interstate commerce, operating many trains daily over its tracks, that the train figuring in the accident was so engaged and at the time en route from Cincinnati to Cleveland, through Columbus, and that the speed, according to the ordinance, could not exceed six miles per hour over grade crossings. And here it ought to be noted that the terms of the ordinance itself would permit of a broader admission on the part of the plaintiff below, relying as he does upon the ordinance, because by its terms that speed could not exceed six miles per hour, not only at grade crossings, but at all other crossings as well, and, in fact, at all points within the corporate limits of the city of Columbus, a distance of several miles; and it is the claim of the railroad company that the observance of the speed limitation of six miles per hour through the city would materially affect time schedules, particularly of the fast mail and other trains carrying interstate passengers and commerce.
“That an ordinance regulating speed, passed in the proper exercise of the police power, in the interest of the safety and for the protection of the public, is competent evidence in a personal injury case, under the settled law of Ohio, cannot be doubted. Back in the eighties, Judge Johnson, speaking for this court in a case from the city of Bellaire, against a railway company, laid down the rule which was followed for many years, in Meek v. Pennsylvania Co., 38 Oh St 632; and, again, more than thirty years later, this court in another Bellaire case, reported by Judge Johnson (another Judge Johnson, of course), in Schell v. DuBois, Admr., 94 Oh St 93. announced a like rule so far as competency is concerned, where it is said in paragraph 2 of the syllabus:
“ ‘The violation of a municipal ordinance passed in the proper exercise of the police power in the interest of the public safety, and not in conflict with general laws, is negligence per se, and where such act of negligence by a defendant is the direct and proximate cause of an injury, not directly contributed to by the want of due care on the part of the injured person, the defendant is liable.’
“We come then to the reasonableness of existing ordinances as that reasonableness reflects upon constitutional provision and limitation, because it must be conceded that the ordinance is based upon statutory authority, and of course in making the test it must be made under the circumstances and conditions of the case at the present time and not contemporaneous with the passage of the original ordinance or amendment.
“Transportation problems and transportation mediums have undergone an amazing change and development since 1889. It is well to keep in mind that the public transportation agencies owe complex duties and obligations to the whole public, the passengers whom they carry and the shippers for whom they carry, and the remaining body of the general public, to the end that their operation may be conducted in such a way as to preserve the highest degree of safety and accommodation to all. Railroads have developed with the times, and with the growth and development of the country — from short line independent service, with slow schedules and long transfer waits, to the consolidated fast through service-of the transcontinental lines of today. All these improvements were necessary to keep pace with the times and the demands of the public, and since the period above mentiond other transportation agencies have been created and made efficient by the master minds and industry of the nation. Electric and gasoline motor vehicles for public as well as private transportation have come into vogue and have fixed themselves permanently in the business and affairs of the country.
“In invoking the police power for the safety of the public in this state the legislature has regulated the use of motor vehicles, both public and private, and has imposed speed limits. In other than business or closely built-up sections of a municipality a maximum speed of twenty miles per hour is permitted, and although commercial motor cars have been further legislated upon the maximum speed for the greater majority of classes has not been reduced, but in some cases increased.
“The scene of this accident was near the corporate limits of the city, so that the 20-mile limit would apply to the speed allowed the majority of motor vehicles at this point.
“Rail transportation on fixed steel tracks is concededly and normally a faster method of transportation than that of motor vehicles upon highways, with no fixed or stationary traction, yet the regulatory laws applying to these two methods of transportation differ materially, with an apparent discrimination against the rail type. There is no dearth of authority on this question, as the question has been raised in many ways and passed upon by the federal and state courts in many instances. And it would appear from a casual survey that there existed a lack of harmony in the conclusions reached. Upon careful analysis much of the inconsistency disappears. The older decisions almost uniformly hold that properly delegated police power may be exercised without limitation, so long as it is not invoked unreasonably and arbitrarily, and just as uniformly sustain the regulatory acts of the legislative bodies, for the reason, we think, that the exigencies of the cases in those earlier times were not persuasive of an unreasonable or discriminatory situation or application.
“The rule of law is in no wise different today. It is the application of the old rule to a set of facts based upon modern development of the transportation business, with the corresponding needs and demands of the public, reducing the situation surrounding the later-day cases to an unreasonable absurdity, that has led to conclusions of a different and opposite effect arrived at in the more recent decisions.
“An extremely well-considered case on the subject is that of Chicago & Alton Rd. Co. v. City of Carlinville, 200 Ill., 314, where this question is fully discussed, and a great number of the older decisions are collated and analyzed. While the holding in that case sustains the ordinance under consideration, yet the law announced is pertinent to the instant case. Proposition five of the syllabus reads as follows:
“ ‘The enactment of an ordinance regulating the speed of trains is an exercise of police power, and before a court can hold such an ordinance unreasonable, the want of necessity for such a measure for the public safety must be clearly made to appear.’
“And, further, proposition three announces the following rule:
“ ‘An ordinance regulating the speed of trains, which conforms to the limitation prescribed by the statute, is presumed to be reasonable, and it is incumbent upon the railroad company seeking to void it to show affirmatively its unreasonableness.’
“The defendant below attempted to bring itself within these rules of law by the allegations of the amended answer, in such a way as to accommodate proof tending to show the impossibility of observing the regulation and at the same time fulfilling its duties as a carrier, and to further show that the specific crossing had no peculiar elements of danger.
“The United States federal court in 1915 announced substantially the same rule as laid down in the Illinois case, supra. This appears in the case of Lusk v. Town of Dora, 224 Fed. Rep., 650, where it is said in proposition two of the syllabus;
“ ‘An ordinance regulating the speed of trains, enacted as an exercise of the police power of the municipality delegated to it by its charter, is presumptively reasonable and valid, and not in conflict with the federal Constitution, but the presumption may be rebutted.’
“And in proposition three of the syllabus:
“ ‘The reasonableness of a municipal ordinance, while a question of law, depends on the peculiar facts in each case.’
“It was held in this case that the ordinance, under the peculiar facts adduced, imposed an unreasonable burden on interstate commerce.
“A decision of the United States supreme court rendered in 1917 very well illustrates the trend of modern decisions upon the question under consideration. In Seaboard Air Line Ry. Co. v. Blackwell, 244 U. S., 310, under the peculiar facts put before the court in that case, the following announcement of the law was made:
“ ‘That provision of the “Blow-Post” law of Georgia (Civil Code, 1910, Sec. 2675-2677), which requires railroad companies to check the speed of trains before public road crossings so that trains may be stopped in time should any person or thing be crossing the track there, is a .direct and unconstitutional interference with interstate commerce as applied to the state of facts specifically pleaded by the defendant interstate carrier in this case, whereby it appears that, to comply with the requirement, the interstate train in question would have been obliged to come practically to a stop at each of 124 ordinary grade crossings within a distance of 123 miles in Georgia extending from Atlanta to the South Carolina line, and that more than six hours would thus have been added to the schedule time of four hours and thirty minutes. Southern Railway Co. v. King, 217 U. S., 524, distinguished.’
“We are persuaded that if in the trial of the case before us the defendant had been permitted to develop the issuable facts set out in the amended answer there would have been presented for solution of court and jury a different situation, and following the line of decisions above mentioned we reach the conclusion that the trial court erred in its ruling on the motion to strike out the matters appearing in the amended answer, and that the charge of the court in respect to the validity of the ordinance, as that validity is reflected by its reasonableness or unreasonableness in this case, while consistent of course with its holding on the motion, nevertheless constituted prejudicial error.

The litigation in that case arose out of an accident at a grade crossing in the City of Columbus which occurred on October 17, 1917. At that time an ordinance of the City of Columbus purportedly limited the speed of trains over crossings at grade to six miles per hour. The opinion of the Court in the Grambo case was written in 1921 but the conclusions reached therein were of equal if not of greater force in 1954 than they were in 1921.

Following the rule in the Grambo case is the case of Weiler v. Pennsylvania Railroad Co., 64 Oh Ap 411. At page 413 of the opinion the Court spoke as follows:

“The court, after hearing evidence upon the reasonableness of a city ordinance providing for a six-mile speed limit for railroad trains, excluded the ordinance. In this, the court committed no error. The court followed the procedure prescribed in Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo, Admr., 103 Oh St 471, 134 N. E., 648, 20 A. L. R., 1214. * * *”

Counsel for the defendant Railroad Company have favored the Court with the opinion of Judge Kloeb, given in 1950 in the unreported case of Bryant, Administratrix v. The Baltimore and Ohio Railroad Company, No. 6116 in the District Court of the United States for the Northern District of Ohio, Western Division. In that case the Railroad Company had raised the question as to the validity of an ordinance limiting the speed of trains to six miles per hour. Judge Kloeb had before him, of course, both the Miller and the Grambo cases, supra. At one point in his opinion he says:

“The Court is impressed particularly with this fact: trucks, competitors of the railroad, are permitted to pass up and down Milan Road at a speed of thirty-five miles per hour; that is, they may go that speed or anything under. Automobiles may travel thirty-five miles per hour, and yet at a railroad crossing where a train propels itself, it must, under the ordinance, go six miles or less per hour.
“The Court is inclined to say that this is an unreasonable and unnecessary limitation as regards the public safety.”

This comment is particularly applicable to the question presented to this Court as we shall later point out. Again, in the opinion Judge Kloeb says:

“The Court is inclined to believe and does believe that the exercise of this power by the municipality under an ordinance enacted in 1883, at a time when the horse and buggy were the only method of transportation along Milan Road, that such a limitation of six miles per hour on the part of the railroad in moving its trains is unreasonable and unnecessary for the public safety. The horse and buggy of those days could travel, when the horse is trotting, about eight miles per hour.”

His conclusion is summarized in these words:

“For the purpose of this case the Court will rule that the ordinance is unreasonable and unnecessary for the public safety.”

The evidence in the case at bar discloses that Section 36.2 of the Code of the City of Columbus of 1952 had its origin in an ordinance of February 4, 1889, which restricted the speed of trains at crossings to six miles per hour. This undoubtedly was the same ordinance which was considered by the Supreme Court in the Grambo case although the enacting date of the ordinance as disclosed in that case does not conform to the evidence in this case. Nevertheless it was enacted in 1889. In 1919 the limit was raised to eight miles per hour and it remained at that limit for approximately thirty-six years when in 1955 it was repealed and the speed limit at grade crossings was fixed at forty-five miles per hour.

Section 36.3 of the Columbus Code of 1952, according to the evidence, first appeared in the 1930 Columbus Code and by its provisions it limited the speed of freight trains to twelve miles per hour. This section likewise was repealed in 1955 and the speed limit was fixed at forty-five miles per hour.

We refer to the history of these two sections and the length of time during which the old ordinances had been in effect because of the fact that the changing conditions to which Judge Hough referred in the Grambo case were far more pronounced in 1954 than they were in 1921 when the Grambo opinion was written. Some of the changed conditions are apparent when we review the physical characteristics of the crossing in question as it existed on March 8, 1954.

On that date a single track of the Baltimore and Ohio Railroad Company crossed West Mound Street near the westerly limits of the City of Columbus at grade. West Mound Street extended in a general easterly and westerly direction and the railroad track in a general northerly and southerly direction. The evidence further discloses that the crossing was level and extended the entire width of West Mound Street. At that point the street was approximately forty feet wide from curb to curb. Approaching the crossing from the west there was an unobstructed view north along the track for a distance of 2005 feet from a point 55 feet west of the west rail and there was an unobstructed view of 2615 feet in the same direction from a point 30 feet west of the west rail. These are the directions in question in this case.

The evidence discloses that the crossing was protected by signs and signals on each side of the track. On each side of the crossing was a post with two signs, one a cross-arm sign bearing the warning “Railroad Crossing” and the other a reflectorized sign bearing the warning “Stop on Red Signal.” On each post were four (4) electrically operated automatic flasher lights, two (2) facing east and two (2) facing west. The lights were electrically operated and each alternated 22 flashes to a minute. They were actuated by southbound trains reaching a circuit point 2840 feet north of the crossing, or by northbound trains reaching a circuit point 3187 feet south of the crossing. These lights continued to flash until the crossing was completely free of any train. The flasher signals were in operating condition at the time in question. With these precautions we can see no valid reason for requiring a train to slow down to either eight or twelve miles per hour before crossing West Mound Street at this point.

Counsel for the Railroad Company also contend that the evidence discloses that these two ordinances placed an unreasonable burden on Interstate Commerce.

The evidence discloses that the track in question was part of a main line running from Cincinnati, Ohio, through Columbus to Wheeling, West Virginia. Three symbol freight trains and two passenger trains travel-ling in each direction, crossed West Mound Street each day, as well as a local freight train. The symbol freight trains carried perishable commodities, livestock and a wide variety of products, all of which had delivery dates which had been guaranteed by the Railroad Company. The average symbol freight train travelling through Columbus at that time contained eighty cars and the normal running time for such trains from Cincinnati to Wheeling was approximately ten hours. The evidence discloses that to operate a symbol freight train through Columbus at the rate of either eight or twelve miles per hour, it would have been necessary to have stopped that train at the city limits, keep it stationary for a period of approximately four minutes in order to adjust the air in the brakes in each of the cars, and then start again and accelerate to the speed required by ordinance. At a speed of eight miles per hour the loss of time through the City of Columbus alone would have been 71 minutes and 30 seconds. At a speed of twelve miles per hour, the loss of time through the City of Columbus alone would have been 43 minutes and 30 seconds. This delay in Columbus alone would have seriously affected connections with other freight trains going east from Wheeling, West Virginia, and going west from Cincinnati, Ohio. Therefore, either delivery dates or schedules would of necessity have to be changed. A large percentage of the cargo on the symbol freight trains was destined for points west of Cincinnati and east of Wheeling, West Virginia. Testimony was submitted to the Court concerning the effect of train schedules if similar speed limits had been imposed in all cities and villages through which the trains passed from Cincinnati to Wheeling and vice versa. We shall not indulge in a discussion of this evidence. Suffice it to say that it would have materially altered both schedules and delivery dates. It is the opinion of the Court that both of the ordinances in question placed unreasonable burdens upon interstate commerce.

It is also contended by counsel for the Railroad Company that the provisions of the two ordinances in question were discriminatory. The evidence discloses that by ordinance of the City of Columbus in effect at the time in question, the prima facie lawful speed for motor vehicles, including many trucks, was thirty-five miles per hour. Furthermore, it is alleged in the pleadings that there were traffic signs on the south side of West Mound Street for several miles regulating the speed of automobiles approaching the crossing at not more than thirty-five miles per hour. In view of this we concur in the conclusion of Judge Kloeb to which we have already referred.

Counsel for the Railroad Company also point out that it was virtually impossible for the Railroad Company to comply with the provisions of the sections in question in view of the so-called “blocking” ordinance. At the time in question there was in effect an ordinance of the City of Columbus which prohibited the blocking of any crossing by a moving freight train for a period longer than two minutes. The evidence discloses that the average symbol freight train could not comply with that ordinance at either eight or twelve miles per hour. The train involved in the accident in auestion carried 55 cars, much less than the average symbol freight train of eighty cars. The 55-car train would require two minutes and forty-five seconds to cross the West Mound Street crossing at twelve miles per hour and four minutes and seven seconds travelling at eight miles per hour. The situation here presented is similar to that in the case of City of Cincinnati v. Luckey, 85 Oh Ap 463. Pertinent to the contention of counsel in the case at bar, is the language of Judge Ross found at pages 468 to 470 of the opinion:

“The same considerations, however, involve the second claim of defendants, that is, that the effect of these two ordinances, Sections 410-8 and 410-26, is an attempted regulation of interstate commerce. Any limitation placed on the length of a train engaged in interstate commerce, imposed by a counsel of a municipal corporation, would obviously be an interference with interstate commerce. The Supreme Court of the United States has held such a limitation beyond the power of a state and obviously such limitation would be beyond the power of any political subdivision thereof. Southern Pacific Co. v. Arizona, ex rel. Sullivan, Atty. Genl., 325 U. S. 761, 89 L. Ed. 1915, 65 S. Ct. 1515, the second paragraph of the syllabus of which is
“ ‘The Arizona Train Limit Law (Arizona Code Ann., 1939, Sections 69-119), making it unlawful to operate within the state a passenger train of more than fourteen cars or a freight train of more than seventy cars, held, as applied to interstate trains, invalid as contravening the commerce clause of the federal Constitution.’
“By application of the two ordinances, every train is required to clear the crossing in ten minutes, and yet no train is permitted to travel faster than ten miles per hour, or 60 minutes, or a mile in six minutes. This means that the longest train which could lawfully pass in ten minutes would be a train one and 4/6th miles long or, as a mile is 5,280 feet, a train 8,800 feet long. The average length of a freight car is approximately 50 feet, so that any freight train containing more than 176 cars could not pass the crossing in ten minutes, and such operation would violate the provisions of Section 410-8 of the ordinances, and if the train went faster than ten miles an hour in order to clear the crossing, such operation would violate the provisions of Section 410-26 of the ordinances.
“Considering the two ordinances together, which the Municipal Court was required to do and as this court is required to do, since it must take judicial notice of that of which the trial court took judicial notice, we must conclude that the effect of the ordinances is an interference with interstate commerce, and, under the circumstances existing in these cases, cannot be enforced against the defendants.”

This case was affirmed on other grounds in 153 Oh St 247.

There is no question but that the Council of the City of Columbus had the authority to regulate the speed of trains through the city. §723.48 E. C. Such regulations are presumed to be reasonable and valid. (Syllabus 3 of the Grambo case, supra.)

“* * * to justify declaring void an ordinance limiting the speed of trains within a municipality, its unreasonableness, or want of necessity as a police regulation for the protection of life and property, must be clear and manifest.” Syllabus 2 of the Miller case, supra.

We have reviewed the evidence in some detail for the purpose of pin-pointing the more important phases of the evidence presented to the Court which, in our opinion, clearly and manifestly disclose the unreasonableness and want of necessity of the ordinance in question. As applied to the grade crossing in question and at the time in question, it is the considered opinion of the Court that the evidence clearly and manifestly discloses that the ordinances at that time and with respect to the West Mound Street crossing were unnecessary, unreasonable, discriminatory, arbitrary and an unconstitutional interference with and burden upon interstate commerce and are, therefore, for the purposes of this case, invalid. It follows, therefore, that the motion in each case made by counsel for the plaintiff to strike the second defense of the Second Amended Answer in each case is, and each of them is, overruled.


author: By SMITH, J.

text:
    McMEANS. In re.
    Common Pleas Court, Scioto County.
    No. 17617.
    Decided May 16, 1957.
    Edgar H. Hale, Portsmouth, for petitioner.
    Everett Burton, Jr., Pros. Atty., Robert E. Dever, Asst. Pros. Atty., for the Sheriff, Burl E. Justice.
   OPINION

By SMITH, J.

This is an action in habeas corpus.

The applicant, William McMeans, seeks to obtain his release from Sheriff Burl E. Justice of this county.

Florida made requisition on the Governor of Ohio for the prisoner as a fugitive from justice.

The Governor of Ohio thereupon issued his warrant to the Sheriff of this county.

The prisoner was arrested and brought before me, as the Judge of the Common Pleas Court of this county to be dealt with according to law.

This cause came on for hearing on the evidence on May 15, 1957, and the arguments of counsel and is now before this Court for final determination.

The sole question for this Court to determine is whether the Governor of Ohio was authorized to issue a warrant for the arrest and extradition of William McMeans upon the request of the Governor of Florida.

This is a proceeding to inquire into the legality of the warrant to determine the question of whether or not William McMeans is illegally restrained of his liberty. Various defects are now claimed in the extradition official documents which have been presented in evidence by the petitioner. However, the Court, on careful consideration of this case has determined that only one defect need be considered as it determines the sole question before this Court.

The demand by the Governor of Florida to the Governor of Ohio, which was introduced in evidence by the petitioner as Petitioner’s Exhibit E, is as follows:

“IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA LEROY COLLINS, GOVERNOR OF FLORIDA

To the Executive Authority of the State of Ohio

“WHEREAS, it appears by the annexed documents, which are hereby certified to be authentic, that William McMeans stands charged with the crime of Breaking and entering committed in the State of Florida, and information having been received that the said William McMeans has fled from justice, and taken refuge in Ohio
“THEREFORE I, LeRoy Collins, Governor of the State of Florida, have thought proper and in pursuance of provisions of the Constitution and laws of the United States, to demand the surrender of the said William McMeans as fugitive from justice, and that he be delivered to Sheriff of Okaloosa County who is hereby appointed agent on the part of the State to receive him.
“GIVEN UNDER MY HAND, and the Great Seal of the State affixed at the City of Tallahassee, the Capital, this 27th day of February, 1957 and of the Independence of the United States of America the One Hundred and Eighty-first year.
/S/ LeRoy Collins, By the Governor: Governor of Florida. /S/ R. A. Gray, Secretary of State.”

Does this demand from the Governor of Florida to the Governor of Ohio meet the mandatory requirements of the statute which governs this case?

The provision of the statute which governs this case is as follows:

“Sec. 2963.03 R. C. Demand for extradition.
“No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless the demand is in writing alleging, except in cases arising under §2963.06 R. C., that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, and unless the demand is accompanied by:
“(A) A copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereupon.
“(B) A copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation, or parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state. The copy of indictment, information, affidavit, judgment of conviction, or sentence must be authenticated by the executive authority making the demand.”

Under the provisions of §2963.03 R. it is mandatory upon the Governor of Ohio not to recognize a demand by any other state for the extradition of a person charged with crime in such other state, unless the demand is in writing alleging that the accused was present in the demanding state at the time of the commission of the alleged crime and that thereafter he fled from the state, except as provided in §2963.06 R. C., which section has no application to the present case.

From an examination of petitioner’s Exhibit E set forth in full herein, it is plainly seen that the demand of the Governor of Florida to the Governor of Ohio in the present case does not comply with §2963.03 R. C.. in that said demand does not contain any allegation that the accused was present in the demanding state of Florida at the time of the commission of the alleged crime and that the Governor of Ohio therefore was without authority to issue his warrant for the extradition of William McMeans in the present case.

This Court feels that the requirements of §2963.03 R. C., are mandatory and unless there is a compliance with the provisions of §2963.03 R. C. that the Governor of Ohio has no authority in law to recognize a demand from another state for the extradition of a person charged with crime in such other state unless the demand from such other state meets the mandatory requirements of §2963.03 R. C.

It has been stipulated and agreed by counsel that all the exhibits introduced in this case were all the documents that the Governor of the State of Ohio had before him when passing upon the question of whether or not to issue his warrant to the Sheriff of this county for the petitioner, William McMeans.

The Court, therefore, considering the face of the record that was presented to Governor O’Neill, and considering the sufficiency of the demand on which Governor O’Neill’s warrant was issued, finds that the proceedings are defective in that no valid demand from the State of Florida was made on the Governor of Ohio for the extradition of the petitioner, William McMeans, which the Governor of this state could recognize for the reason that said demand did not meet the mandatory requirements of §2963.03 R. C.; and, that therefore the Governor of Ohio was without authority in law to recognize the demand from the Governor of Florida, for the extradition of the petitioner, William McMeans, and to issue his warrant to the Sheriff of this county for the extradition of the said petitioner, William McMeans.

The judgment, therefore, is that the said petitioner, William Mc-Means be, and he hereby is discharged.

Exceptions to all parties concerned are noted.

Counsel for petitioner may draw an entry in accordance with this opinion and present the same to the Prosecuting Attorney of Scioto County, Ohio, for his signature.


text:
    RAY, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5358.
    Decided March 16, 1956.
    Barkan, Brown & Dobbs, Columbus, for plaintiff-appellee.
    Morton Y. Reeves, of Counsel, Chalmers P. Wylie, City Atty., R. Patrick West, Senior Asst. City Atty., Columbus, for defendant-appellant.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second Districtj
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment entered on a directed verdict. At the conclusion of a trial by court and jury, both parties moved for a directed verdict. Thereupon, the court directed the verdict for the plaintiff in the amount of $1,062.00 and costs and entered judgment on the verdict.

Six errors are assigned all of which raise the same question. Plaintiff’s action was for damages for personal injuries, claimed to have been suffered by her by reason of the negligence of the defendant in the operation of a case loader or a municipal improvement near the corner of West Broad Street and Hartford Avenues in the City of Columbus. The specifications of negligence are:

(1) Failing to yield a right-of-way to plaintiff.

(2) Failing to signal intention to back into the path of the plaintiff.

(3) Failing to control the loader so as to prevent colliding with the plaintiff.

The answer of defendant was a general denial a second defense of contributory negligence, and the third, at the time of the accident, defendant, city, was engaged in a governmental function. The reply denied the affirmative defenses.

All of the errors assigned are urged but special attention is given to the second and third.

The trial judge made special findings of fact and conclusions of law in which he found the material facts to be as claimed by the plaintiff, and held that the defendant was negligent and that contributory negligence was not proven, nor did the fact that the improvement being made by the city at the time of the accident was in the exercise of a governmental function absolve the defendant from liability for its negligence.

We have read the record and find that there is support for all of the findings of fact and that the conclusions of law as applied to these findings are sound and support the directed verdict and the judgment. We hereinafter comment on special finding of fact No. 5.

The Court held that because of the failure of the city to properly barricade the improvement in which it was engaged at the time and place where plaintiff was injured it was amenable to the terms of §3714-1 (§701.02 R. C.)

Finding of fact No. 3 sets out the nature of the repair job upon which the city was employed at the time of the accident. It is:

“During the morning of June 11, 1952, the defendant city was engaged in street repair work on West Broad Street, a duly dedicated public street within the city, in the vicinity of Hartford Avenue. Such repair work consisted of the removal of the asphalt in a strip 5'5", in width by 39'6" in length lying immediately to the north of the 7' brick gutter along the south curb line of West Broad Street. Such strip was located in the area normally used as a regular bus stop for the Columbus Transit Company.”

Finding of Fact No. 5:

“The barricade described in the preceding paragraph of these findings, located as therein recited, qualified as ‘traffic control devices’ under §4511.04 R. C. (§6307.4 GC) to designate the area in which the city’s equipment was actually engaged in work upon the surface of the highway, insofar as vehicular traffic was concerned, but, the barricades being located in a ‘U’ shape with the open area to such ‘U’ toward the curb, such barricades were insufficient as to pedestrians, and prospective passengers for bus service, to designate the area as one in which the city’s equipment was actually engaged in work upon the surface of the highway within the meaning of §4511.04 R. C. (§6307-4 GO.”

The Bill of Exceptions is most unsatisfactory as it relates to the foregoing finding of fact, which counsel for appellant insists is not supported by the record. Reference is made to one or more exhibits but none is incorporated in the Bill. It is evident that drawings were made on a blackboard to which the witnesses during their testimony made reference. We direct attention to questions and answers which illustrate the difficulty with which this court is confronted in attempting to interpret and apply the statements of these witnesses. William E. Brannan, foreman of the Asphalt Street Repair Department of the City of Columbus, who directed the placing of the barricades, testifying for the defendant, at page 116 of the record:

“Q. Now, Mr. Brannan, if it will help any and you want to use this sketch on the blackboard, use that.
“A. I can show you on the blackboard.
“Q. All right, if you will just step over here.
“A. Well, somebody has the location of the truck which is right, and when I got there, the loader was right in around here (indicating), and there were barricades went back here. (Indicating) I don’t know if that is meant for a barricade there or not, but there was a barricade back here and barricade — four barricades down the center line. Now this barricade here (indicating) I had put there in order when the traffic come up to throw traffic around that patch and this is a brick gutter in here (indicating) there were four barricades in here and one setting over here and down the turn, and of course, we didn’t have no barricades on the sidewalk, no need to be if you have them in the brick gutter.” (Emphasis ours.)
“Q. How far to the west was the west barricade in the brick gutter?
“A. This barricade (indicating).”

The record is frequently interspersed with such testimony as that which we have just quoted. It is entirely unintelligible to a reviewing court, although, no doubt, understandable to the trial judge and jury. The obligation is upon the appellant to exemplify any error assigned. Manifestly, it fails with respect to special finding of fact No. 5.

It is singular that although the length and the width of the “patch” is definitely set out no mention is made of its depth. It must have been shallow.

However, on the question of the sufficiency of the barricades the trial judge was well within the evidence in holding that they were inadequate to properly warn the plaintiff of danger or to keep her off the repair job.

She says that she does not recall if any barricade was along the curb at Broad Street but that she did not push or step over any barricade as she stepped off the curb. From her testimony, it may be inferred that there was no impediment to her movement from where she was waiting for the bus out into the stret and then back again.

Jesse Payne, a truck driver for the city at the site of the improvement said that there was no barricade along the west end of the “patch,” that he drove right in that way.

Robert Donald Parker, testifying for plaintiff says that he does not remember whether or not there was any barricade at the west end of the cut. Mr. Brannan, under whose direction the barricades were placed said that there was no barricade at the west end of the patch, the place near where the accident occurred, but that it was 25 feet west of this place. The finding is supported that there was no barricade at the west end of the cut proper and that there was no barricade which prevented plaintiff moving into the street from where she was waiting for the bus.

The issues of the assumption of a risk and the contributory negligence of the plaintiff were mixed questions of law and fact as to which the trial judge had full right to make determination.

Taking the view of the record which we do, it is not necessary that we discuss the many cases cited in the fine brief of the city.

We find no error assigned well made.

The judgment will be affirmed.

MILLER, PJ, DEEDS, J, concur.


author: By THE COURT.

text:
    MILLER, Plaintiff-Appellee, v. INDUSTRIAL COMMISSION OF OHIO, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5475.
    Decided October 4, 1956.
    Traxler & Beil, Marvin Traxler, of Counsel, Youngstown, Schwartz, Gurevitz & Schwartz, Columbus, for plaintiff-Appellee.
    C. William O’Neill, Atty. Geni., James L. Young, Blaine T. Sickles, I. Charles Rhoads, Asst. Attys. Geni., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment rendered in favor of the plaintiff by the Common Pleas Court of Franklin County, holding that plaintiff was entitled to participate in the benefits of the Workmen’s Compensation Act of Ohio.

Plaintiff’s decedent was employed by the Welfare Department of the State of Ohio as a clerk at the Columbus State Hospital. On June 8th, 1953, decedent was performing his usual work in the customary manner. On that date he was observed as he came off the elevator.

A witness who was seated at a desk, approximately thirty feet from the elevator, saw him leave the elevator in a falling position, as if he had stumbled. Subsequently, on-July 29th, 1953, decedent’s right leg was amputated below the knee; and on October 27th, 1953, decedent died of cancer of the lung. The decedent had a long history of advanced arteriosclerosis, and about one year prior to the claimed injury he had a bilateral lumbar sympathectomy for relief of this arteriosclerotic condition.

There was expert medical testimony to the effect that the amputation of the leg, which was caused by a gangrenous condition of the right foot, aggravated the lung condition or accelerated the death of the decedent.

As we view it, the sole question is whether the decedent suffered an accidental injury during the course of his employment. In other words, did decedent suffer an accidental injury as he was leaving the elevator on June 8th, 1953?

There is no direct evidence in this case as to the cause of decedent leaving the elevator in a “falling position.” Plaintiff claims decedent stumbled and sustained trauma to his great toe on his right foot. If decedent stumbled, there is no evidence to show what caused him to stumble. There is evidence that, on the day in question, when he arrived at his residence, the great toe on his right foot was inflamed and was placed in some solution to relieve the inflammation.

Different inferences may be drawn from the evidence, some favorable and some unfavorable to the plaintiff’s case. “If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.” Stevens v. Industrial Commission, 145 Oh St 198, 61 N. E. (2d) 198. The term “injury” as used in the Act has been defined recently by our Supreme Court in Dripps v. Industrial Commission, 165 Oh St 407, as follows:

“The term ‘injury,’ as used in the Ohio Workmen’s Compensation Act, comprehends a physical or traumatic damage or harm accidental in character and as a result of external and accidental means in the sense of being the result of a sudden mishap, occurring by chance, unexpectedly and not in the usual course of events, at a particular time and place.”

On the same day the Supreme Court decided the case of Artis v. The Goodyear Tire and Rubber Co., 165 Oh St 412. On page 413 the Court said: “Since there is no evidence in the present case that the injury resulted from a sudden mishap or by accidental means, claimant has failed to establish his right and is not entitled to participate in the fund.” This is the situation in the instant case.

In the case of Gerich v. Republic Steel Corp.. 153 Oh St 463, 92 N. E. (2d) 393, Judge Hart collates a number of cases in which an injury has or has not been found to be compensable. After making a careful examination of these cases, and in the application of the rule laid down in the Dripps case as to what constitutes an “injury” as used in the Act, we are convinced that the evidence in the instant case fails to show a compensable injury.

The Common Pleas Court erred in overruling defendant’s motion for a directed verdict and for judgment notwithstanding the verdict; the judgment is against the manifest weight of the evidence, and contrary to law.

Finding errors in the record prejudicial to the rights of the appellant, the judgment is reversed. Judgment entered for defendant.

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