author: By SKEEL. J.

text:
    KAUFMAN IRON AND METAL COMPANY, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24720.
    Decided April 16, 1959.
    Simon & Goldsmith, for plaintiff-appellee.
    Squire, Sanders & Dempsey, for defendant-appellant.
   OPINION

By SKEEL. J.

This appeal comes to this court on questions of law from a judgment entered by the court in the Court of Common Pleas of Cuyahoga County for the plaintiff, the parties having waived the right to trial by jury. The action is on alleged breach of contract.

The plaintiff, a scrap iron dealer, shipped thirty-one cars of scrap iron from a point in Cleveland to the river front terminal of the Baltimore and Ohio Railroad Company in Cleveland to be delivered at dockside to the S. S. Elba. The shipment was by contract of carriage with Luria Brothers. The contents of the thirty-one cars was delivered by the defendant at its destination and lowered into the hold of the Elba and there mixed with other scrap iron for delivery to the Bethlehem Steel Corporation in Buffalo, New York. The contracts of shipment consisted of four uniform “straight” bills of lading in which Luria Brothers was named both as consignor and consignee. Each of the bills of lading, when delivered to the defendant, did not indicate the weight of the scrap iron in each car which weight would be necessary to establish the freightage. Each of the bills, however, had typewritten thereon a notation, “to be weighed.” The defendant weighed the cars during the course of transit and noted the weight on the bills and the car cards. The shipment then proceeded to its destination and was disposed of as indicated.

It is the claim of the plaintiff, as shown by its petition in four causes of action, that the defendant’s scales were out of order and showed the weight of each car as considerably less, about ten per cent, than was actually true. The plaintiff then alleges that the weight was put on the four bills of lading and furnished to it by the defendant and was used by it to bill the purchaser of the scrap iron and this action seeks to recover the difference between the amount the plaintiff received for the shipment, as thus billed, and the amount that would have been received •had the defendant’s scales been accurate.

The defendant claims the following errors:

“1. The findings and judgment of the trial court are contrary to the law and the evidence.
“2. The judgment of the trial court is excessive in that no damages were proved.”

The rights of the parties in this action are completely controlled by the terms of the bills of lading. The defendant, a common carrier, is circumscribed in its relation with shippers by the regulations imposed upon it by law. The bills of lading describing the shipment in four groups of cars, totaling thirty-one cars in all, constituted not only a receipt for the goods but also the contract of carriage. The terms of the contract cannot be other than in conformity with the regulations imposed upon the defendant by the Interstate Commerce Commission as to interstate shipments, or The Public Utilities Commission of Ohio, in intrastate shipments.

The contract (bills of lading) presented in this case, show that the cars loaded with scrap iron and delivered to the defendant, were “to be weighed.” The plaintiff, not having the means of weighing carload lots, and it being necessary to determine the weight to figure the freightage, the defendant was required to perform this service as an incident to, and for the purpose of carrying out the contract of carriage. There was no charge for this service nor could there be because of the tariff regulations then in force, the contract of carriage being with regard to an original transportation agreement.

The bill of lading used in these shipments had printed over the column in which the weights were to be recorded (after weighing) and headed “weight,” the words “subject to correction.” These words are not ambiguous and clearly modified any right to a claim that the weights set forth are final as to the rights of the parties based thereon or their right to rely thereon for other purposes aside from and beyond the contract of carriage between the parties, if there be any legal obligation under the latter circumstance.

We find that the first claim of error is well taken. While there is some evidence that the plaintiff and some other scrap iron dealers have on occasions depended on the weights ascertained by a carrier and recorded on the bill of lading under its contract of carriage (a service required of it by law in an original shipment, for the purpose of computing freightage), for billing purposes, such fact creates no obligation on the part of the carrier resulting from such use of weight information even if the weights ascertained are erroneous because of defective scales. The weight information here under consideration was entirely incident to the contract of carriage and for which the freightage paid for the shipment was the entire consideration. Here there is no ambiguity in the contract. The weights were tentative as provided by the bill of lading. That this fact was clearly understood is supported by the undisputed evidence that when cars of scrap are delivered directly to a steel manufacturer, the manufacturer pays the seller only seventy-five per cent of the billed weights and holds the balance until the car is weighed by them. The only reason that procedure was not followed here is because plaintiff mixed these carload lots with other scrap in the hold of the “Elba.” Also by the further fact that the freightage due on the shipment is to be determined by the true weight and the defendant would not be estopped from demanding the full amount due under the tariff rgardless of the mistake in weights caused by its defective scales.

A contract which is clear and not ambiguous cannot be modified by a custom, even where a custom is otherwise recognized by the parties and is such as imposes a legal obligation. In O. Jur., Vol. 40, under the title “Usages and Customs,” page 781, paragraph 19, it is said:

“In other words, usage' may be admissible to explain what is doubtful, but never to contradict what is plain.”

The plaintiff here seeks to extend the defendant’s responsibility completely outside its contract for alleged results completely disassociated with the carriage of the goods. We find no legal justification for such a claim.

For the foregoing reasons, the judgment is reversed and final judgment is entered for the defendant.

HURD, PJ, KOVACHY, J, concur.


source: Caselaw Access Project

author: By HORNBECK, PJ.

license: Public Domain

text:
    CENTRAL STATES SIDING AND INSULATION, INC., a Corporation, Plaintiff-Appellee, v. MALONE et, Defendants-Appellants.
    Ohio Appeals, Second District, Madison County.
    No. 238.
    Decided December 28, 1957.
    Forrest E. Sidener, Jr., London, for plaintiff-appellee.
    John W. Tanner, London, for defendants-appellants.
   OPINION

By HORNBECK, PJ.

This is an appeal from an order of the Common Pleas Court dismissing the petition of defendants to vacate a judgment on behalf of plaintiff taken under power of attorney on a cognovit note on which defendants were makers and the plaintiff was the payee.

The facts are that plaintiff took its judgment for $1485.00 with interest and costs on June 15, 1956. The installment note, a part of the petition was dated May 2, 1956. It provided for the payment of $1485.00:

“in____equal successive monthly instalments of $____each, the first instalment to be paid on the day of 19 . and subsequent instalments on the same day of each month thereafter until paid in full.
“Upon default in the payment of any instalment when due, all instalments then remaining upaid shall, at the option of the holder thereof, become immediately due and payable.”

Execution was issued on this judgment, levy made on certain real estate owned by defendants, sale ordered, property sold to Edward Shy, Jr., on August 30, 1956. Thereafter, upon application of the purchaser, the order of sale was set aside and a deposit on the purchase money returned to him. Before this last order was made, of date August 28, 1956, there was filed in the case an assignment of the judgment from plaintiff to the Cotton Lumber Company.

Defendants, on September 17, 1956, filed their petition to vacate the judgment against them. The petition averred that the defendants were not summoned, had no legal notice of the time and place of the taking of judgment against them; that it was taken in an amount larger than the sum then due plaintiff and that plaintiff failed and neglected to advise the court of the existing contract by reason of which the note was executed. At the same time, defendants proffered and filed an answer which included the averments of the petition, set forth a copy of the contract as a result of which the note was given. This answer averred that on June 15, 1956, the date when the judgment was taken, the work which plaintiff was to perform for defendant had not been completed. The answer also averred that under the terms of the original contract which was for $975.00, and the terms of a second contract in the amount of $510.00, which were pleaded, the payments were to be made in installments of $33.18 each month on the first contract and $17.35 monthly on the second contract; first payment on each contract due 60 days after the date thereof. It will be noted that the judgment was entered June 15, 1956, which was less than 60 days after the date of either the first or the second contract set up in the answer. The note upon which the judgment was taken is blank as to the date when it is due.

Summons was issued on the petition to vacate upon plaintiff, Central States Siding and Insulation Inc. This summons was served September 21, 1956.

On January 31, 1957, the Cotton Lumber Company, assignee of the judgment, by counsel, moved to be made a party to the action. At all times the title of the case was as originally carried, namely, Central States Siding and Insulation Inc., a Corporation, plaintiff, and Arthur T. Malone and Catherine Malone, defendants. This motion set out the ownership, by sale, assignment and transfer to the Cotton Lumber Company, of the judgment of the plaintiff against the defendants. It asserted that (1) “it was a party united in interest and (2) a necessary party to a complete determination or settlement of the questions involved herein.”

On February 28, 1957, the motion of the Cotton Lumber Company was sustained, the entry in which provided that “it be made a party defendant and that service be obtained thereupon according to law.” This entry was approved by the attorney for the Cotton Lumber Company and upon its face is written “Submitted to defendants counsel according to rule.” Thereafter, on July 2, 1957, this entry was spread upon the record:

“The Court, sua sponte, finds that the judgment herein was rendered against the defendants on 15 June 1956, subsequently within term an assignment of said judgment was entered on the docket and in the case to the Cotton Lumber Company.
Thereafter, at the succeeding term of Court, defendants, filed their petition to vacate said judgment and failed to make said assignee a party. At the next succeeding term of Court, to-wit, on 28 February 1957, ordered the defendants through their attorney J. Harvey Crow to make said assignee a party and issue summons according to law. All of which said defendants have failed and neglected to do.
It is therefore ordered, adjudged and decreed that said petition to vacate be and the same hereby is dismissed at defendants costs and their exceptions noted.”

This is the order from which the appeal is prosecuted. Two errors are assigned: (1) Judgment of the Court is Contrary to law. (2) That the Court had no authority to dismiss the petition to vacate said judgment without notice.

At the outset, we admit that there are aspects of the law of this case as to which we are not certain. However, we feel that it is only just to consider the order appealed from in the broader aspects of the record and as it affects the basic rights of the parties.

The finding of the trial judge that “the assignment of the judgment was noted upon the docket and in the case of the Cotton Lumber Company” is not incorporated as a ground for the sustaining of the motion, but we must assume that in the consideration and determination of the motion, the trial judge found this condition to be a fact. This being true, it was the obligation of the defendants when they filed their petition to vacate to make the Cotton Lumber Company a party and to issue process to it. But this was not done and thereafter the Cotton Lumber Company filed its motion to be made a party without specifying whether a party plaintiff or defendant. It did state that it was a party united in interest, obviously with plaintiff.

What, then, was the proper order of the Court and the obligation of defendants and the Cotton Lumber Company when the trial judge sustained its motion.

The style of the case wherein a motion or a petition is filed to vacate a judgment does not change §2307.03 R. C. Although the petitioners in the proceedings to vacate are the defendants in the caption, the original action must be prosecuted by the real party in interest. Sec. 2307.05 R. C.

The plaintiff having assigned and transferred all of its interest in the judgment to the Cotton Lumber Company, it would appear to be the real party in interest. Sec. 2307.19 R. C., provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”

If we construe §2307.05 and §2307.19 R. C., together, the first part of §2307.19 R. C., will control. It is inconceivable that the Cotton Lumber Company had any interest adverse to the plaintiff and §2307.20 R. C., provides that “parties who are united in interest must be joined as plaintiffs or defendants. * *

But for the requirement that no change should be made in the caption of the case this statute would authorize a joinder of the Cotton Lumber Company with the plaintiff, Central State Siding and Insulation Company, Inc.

It has been held that the requirement in §2307.20 R. C., as to the joinder of parties in interest is mandatory in character as to such parties and applies at all stages of litigation. Columbia Graphophone Co. v. Slawson, 100 Oh St 473; Clark, Exr. et al v. The McClain Fire Brick Co., 100 Oh St 110.

The most logical status of the Cotton Lumber Company would be that of a substitute party plaintiff, §2307.25 R. C.; 30 O. Jur. 804, paragraph 73, but for the fact that it did not own the note when the judgment was taken.

The most vital question is, was the order that the Cotton Lumber Company be served with process a necessary or proper order and mandatory upon defendants to observe.

It is our judgment, that upon the sustaining of the Cotton Lumber Company’s motion predicated upon the fact that it was' the sole owner of the judgment described and directing that it be made a party, it was not required that it be served with summons. It had entered its appearance and should have been made a party with leave to plead. The entry dismissing defendants petition did not specifically state that they were required to serve summons upon the Cotton Lumber Company.

In view of the uncertain situation as to the status of the parties, it is understandable that there may have been uncertainty by the defendants as to their obligation under the order sustaining the motion of the Cotton Lumber Company.

The trial judge is to be commended for his action in attempting to speed up the processes of the Court. However, had the Cotton Lumber Company been made a party and permitted to plead, the matter could have been assigned and determination could have been made upon the petition to vacate. Although not controlling, it is interesting to observe that, in probability, the dismissal of the petition would not preclude the defendants from again instituting their proceeding to vacate the judgment against them. The dismissal would not have the effect of terminating the issue sought to be drawn by their petition and the answer filed in connection therewith.

The dismissal of the petition of the defendants was, under the facts developed and the law, prejudicially erroneous to them. The order will be reversed and the cause remanded for further proceedings according to law.

WISEMAN and CRAWFORD, JJ. concur.


author: By DOYLE, PJ.

text:
    STATE, Plaintiff-Appellee, v. MARTIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24763.
    Decided May 7, 1959.
    Walter C. Kelly, Jr., Director of Law, Shaker Heights, Paul R. Donaldson, for plaintiff-appellee.
    Howard S. Stern, for defendant-appellant.
    (DOYLE, PJ, STEVENS and HUNSICKER, JJ of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, PJ.

The appellant, Elva Martin, was charged on November 12, 1958, by affidavit in the Shaker Heights Municipal Court, with violating §2905.27 R. C., by engaging in “prostitution, lewdness or assignation.” On the same day a warrant was issued upon the affidavit and she was brought before the Court.

The bill of exceptions shows that the affidavit was read to her; she was asked if “she understood the charge and the nature of the offense”: she replied that she did. The Court then read to her and explained the statutory penalty for the offense with which she was charged. Upon inquiry, the defendant replied that she understood the penalty. The Judge and the prosecuting attorney then instructed the accused that it was her right to be represented by counsel and that counsel would be furnished by the Court if she was unable, financially or otherwise, to secure counsel by herself. “Defendant replied that she did not wish to be represented by counsel and that she wished to proceed without counsel.” The Court and the prosecutor then informed the defendant of her legal right to a trial by jury. She replied, by waiving the right.

The record before this Court continues by showing the following: “Defendant was asked ... by the court how she wished to plead and .... the defendant said that she plead guilty to the offense as charged and as set forth in the said affidavit. Defendant’s plea was accepted by the Court and the defendant was referred to the Probation Officer and released, pending the probation report.”

On the 2nd day of December, 1958, further proceedings in the case were had, and in these the defendant was represented by counsel. The report of the department of probation was presented, following which the Court entered an order finding the defendant guilty pursuant to her plea in a former proceeding. No effort was made at this time to withdraw the plea of guilty and the Court thereupon sentenced the defendant to nine months in the County jail and suspended all of the time excepting sixty days. The suspended part of the sentence was made contingent upon the defendant either remaining out of Cuyahoga County or if she stayed in the county, keeping the Court informed of her whereabouts.

The bill of exceptions further states that “After sentence was imposed by the Court, defendant’s counsel made an oral motion to withdraw defendant’s plea of guilty and substitute a plea of not guilty and at the same time made an oral motion for a new trial. Whereupon, the Court denied said oral motions and defendant was committed to the Sheriff of Cuyahoga County.”

Sixteen days later, on December 18, 1958, the following motions were filed: (1) Motion to withdraw plea of guilty, (2) Motion for new trial, (3) Motion for mitigation of sentence, (4) Motion to suspend sentence. Also on this day a notice of appeal was filed. On the following day the various motions were denied by the Court.

The appeal to this Court is taken “from the judgment .... entered on the 12th day of November, 1958, wherein the Municipal Court of Shaker Heights entered a judgment of guilty against this defendant (and) from the sentence of the Municipal Court . . . entered on the 2nd day of December, 1958. . . .”

The single assignment of error reads as follows: “The Court erred prejudicially in denying the defendant-appellant herein permission on motion to withdraw her plea of guilty previously entered, and to proceed to trial on a plea of not guilty.”

A motion to withdraw a plea of guilty, and to be allowed to enter a plea of not guilty, addresses itself to the discretion of the trial Judge before whom the plea is entered, and, in the absence of an abuse of that discretion, an appellate Court will not interfere. This rule of law finds support in the vast majority of the states.

In cases when it appears that a plea of guilty was entered by mistake, or under a misconception of the nature of the charge, or through a misunderstanding of its effect or because of misrepresentations, a Court should in the exercise of its discretion permit the withdrawal of a plea of guilty. However* where it appears that a defendant was not misled in any way by anyone; was fully advised of his right to a jury trial; was advised of the charge and the penalty; was offered the services of an attorney; under ordinary circumstances there would be no error in a Court’s refusal to allow a withdrawal, of a plea of guilty, and this would be especially so when the motion was made for the first time after the imposition of sentence. See 15 O. Jur. (2d), Section 217, p. 416 (Criminal Law). The administration of justice does not countenance the right of a person who formally declares his guilt to gamble with fate by pleading guilty in the expectation of receiving a suspended or a light sentence and then demanding as his right a withdrawal of his guilty plea when the sentence is greater than he expected.

From the record before us, we do not find that the Court abused its discretion in denying the motion of the appellant to withdraw her plea of guilty made after the report of the probation department and the imposition of sentence.

The judgment will be affirmed.

Judgment affirmed. Exceptions.

STEVENS and HUNSICKER, JJ, concur.


author: By DRAPER, J.

text:
    TRAVELERS INSURANCE CO., Plaintiff, v. BUCKEYE UNION CASUALTY CO. et, Defendants.
    Common Pleas Court, Franklin County.
    No. 198458.
    Decided March 10, 1959.

      Wright, Harlor, Purpus, Morris & Arnold, for plaintiff.
    Power, Griffith & Jones, for defendant The Buckeye Union Casualty Company.
    Graham, Graham, Gottlief & Johnston, for defendant John Keiser.
   OPINION

By DRAPER, J.

This case comes into this court on a motion for judgment on the pleadings by the defendant Buckeye Union Casualty Company.

The points upon which the motion is based, are as follows:

1. Is the Declaratory Judgment action available to the Travelers Insurance Company in this case?

A — The motion for judgment on the pleadings is in the nature of a demurrer.

The question presented by such motion is whether or not the facts alleged are sufficient to give the Court jurisdiction to enter a Declaratory Judgment.

First — There must be a justiciable controversy.

Second — The facts pleaded must justify a declaration by the Court as to the rights of the parties which would terminate the uncertainty and end the controversy.

Third — Party seeking the relief must show he has a legal interest in the controversy.

If these are shown, then the Court may declare rights of parties.

2. Is there a duty to defend based on the allegations contained in the petition?

3. Can the employee of the insured recover under the policy?

Basically the issue is, does the Buckeye Union Casualty Company owe coverage to and the right to defend to the Gulf Refining Company, a defendant in a suit in Federal Court where John Keiser is plaintiff. The following are the facts:

The Gulf Refining Company maintains a place of business at 1400 Moxahala Avenue, Zanesville, Ohio, for the distribution of petroleum products; that on this premises is located a large overhead pipe through which diesel fuel is loaded into tank trucks.

The Travelers Insurance Company had in full force and effect a certain policy of liability insurance issued to Gulf Refining Company, providing bodily injury liability coverage on the premises here in question and containing, among others, the following provisions:

“The Travelers Insurance Company * * * agree with the insured, named in the declarations made a part hereof, * * * subject to the limits of liability, exclusions, conditions and other terms of this policy, provided The Travelers Insurance Company shall be the insurer with respect to Coverage A and no other * * *:
“Insuring Agreements
“1. Coverage A — Bodily Injury Liability.
“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person and caused by accident.
* * * If! * *
“Conditions
“The conditions, except conditions 7, 9, 10 and 11, apply to all coverages. * * *
<f* # at
“3. Definitions. * * *
“(b) Automobile. Except where stated to the contrary, the word ‘automobile’ means a land motor vehicle or trailer as follows:
“(1) Owned Automobile — an automobile owned by the named insured;
“(2) Hired Automobile — an automobile used under contract in behalf of, or loaned to, the named insured provided such automobile is not- owned by or registered in the name of (a) the named insured or fb) an executive officer thereof or (c) an employee or agent of the named insured who is granted an operating allowance of any sort for the use of such automobile;
“(3) Non-Owned Automobile — any other automobile.
<<$ * *
“(e) Purposes of Use. * * * Use of an automobile includes the loading and unloading thereof.
“12. Other insurance. If the insured has other insurance against a loss covered by this policy the company shall not be liable under this policy for a greater proportion of such loss than the applicable limit of liability stated in the declarations bears to the total applicable limit of liability of all valid and collectible insurance against such loss; provided, however, the insurance under this policy with respect to loss arising out of the use of any non-owned automobile shall be excess insurance over any other valid and collectible insurance available to the insured, either as an insured under a policy applicable with respect to such automobile or otherwise. * * *”

The Buckeye Union Casualty Company issued to one R. T. McCracken an automobile liability insurance policy, which policy covered the truck herein and contained among others, the following provisions:

“Declarations
“Item 5. The purposes for which the automobile is to be used are business, pleasure and commercial. * * * (c) Use of the automobile for the purposes stated includes the loading and unloading thereof.
“The Buckeye Union Casualty Company * * * agrees with the Insured, named in the Declarations made a part hereof, * * * subject to the limits of liability, exclusions, conditions and other terms of this policy:
“Insuring Agreements
“I. Coverage A — Bodily Injury Liability — To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
“II. Defense, Settlement, Supplementary Payments. As respects the insurance afforded by the other terms of this policy under Coverages A and B the company shall: (a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; but the company may make such investigation, negotiation and settlement of any claim or suit as it deems expedient; * * * (c) pay all expenses incurred by the company, all costs taxed against the insured in any such suit and all interest accruing after entry of judgment until the company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the company’s liability thereon;
“The amounts incurred under this insuring agreement, except settlements of claims and suits, are payable by the company in addition to the applicable limit of liability of this policy.
“III. Definition of ‘Insured.’ With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. The insurance with respect to any person or organization other than the named insured does not apply: (a) to any person or organization, or to any agent or employee thereof, operating an automobile repair shop, public garage, sales agency, service station or public parking place, with respect to any accident arising out of the operation thereof, but this exclusion does not apply to a member of the same household as the named insured; (b) to any employee with respect to injury to or sickness, disease or death of another employee of the same employer injured in the course of such employment in an accident arising out of the maintenance or use of the automobile in the business of such employer.”
“Exclusions,” provides in part;
“This policy does not apply * * * (d) under coverages A and C, to bodily injury to, or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law; (e) under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen’s compensation law * *

On or about April 6, 1954, at or about 10:15 A. M. John Keiser, an employee of R. T. McCracken, drove the truck herein which was a tank truck, to the premises of the Gulf Refining Company for the purpose of obtaining a load of diesel fuel. When he arrived at the premises of Gulf Refining Company, he placed his truck by the loading platform, climbed on the side, opened the cocks and prepared to load. The Gulf Refining employees handed down to John Keiser a loading pipe from which the diesel fuel had not been drained on a previous loading. As the pipe was lowered to John Keiser, there suddenly spued forth oil into the face of John Keiser, causing him to lose his balance, and to fall from the top of the truck, striking his face on the truck door and landing on his back on the ground.

John Keiser, sued the Gulf Refining Company in the Federal Court at Columbus, Ohio, alleging the facts herein and others.

The Travelers Insurance Company requested Buckeye Union Casualty Company to defend the action on behalf of Gulf Refining Company, which they refused to do; after this refusal Travelers instituted this action to declare that:

1. That the Gulf Refining Company is an insured under the policy of Buckeye Casualty Company and is entitled to coverage thereunder.

2. That the coverage afforded to Gulf under the plaintiff’s policy is excessive over such coverage under the policy of defendant, Buckeye.

3. That Buckeye is required to undertake the defense of Case No. 4619 on behalf of Gulf and to assume up to limits of its policy, the responsibility for any judgment or settlement.

The first question to be decided is whether the declaratory judgment action filed herein can be maintained by the Travelers Insurance Company.

The statutes under which this action is attempted to be maintained are §§2721.01, 2721.02, 2721.03, 2721.04, 2721.05 and 2721.06 R. C.

“As used in §§2721.01 to 2721.15, inclusive, R. C., ‘person’ means any person, partnership, joint-stock company, unincorporated association, society, municipal corporation, or other corporation.” — Sec. 2721.01 R. C.
“Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree.” — Sec. 2721.02 R. C.
“Any person interested under a deed, will, written contract, or writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under such instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.” — Sec. 2721.03 R. C.
“A contract may be construed by a declaratory judgment either before or after there has been a breach thereof.” — Sec. 2721.04 R. C.
“Any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto in any of the following cases:
“(A) To ascertain any class of creditor, devisees, legatees, heirs, next of kin, or others;
“(B) To direct the executors, administrators, trustees, or other fiduciaries to do or abstain from doing any particular act in their fiduciary capacity;
“(C) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.” — Sec. 2721.05 R. C.

The purpose of these statutes is very ably set forth in Sec. 4 of 16 O. Jur. 2nd, p. 643 entitled “Declaratory Judgments,” as follows;

“Purpose of Statutes. The Declaratory Judgments Act was primarily designed to supply deficiencies in legal procedure which existed prior to its enactment, and its principal object and purpose was to provide a remedy in those situations where none existed because a controversy had not progressed to a point where there was a wrong to remedy or a right to enforce. Its purpose is to provide procedural means to settle controversies and to afford relief from uncertainty with respect to rights, status, and other legal relations. In other words, the basic purpose of the act is to relieve parties from acting at their peril in order to establish their legal rights.
“Certain sections of the act enumerate certain specific purposes for which the remedy provided by it may be employed, but the act states that such enumeration does not limit or restrict the exercise of the general power conferred by it.”

At Section 5, ibid, -it is held that the act provides that its sections are remedial and shall be liberally construed.

There must be a justiciable dispute between the parties, and they may not litigate questions which may never affect them to their disadvantage.

The controversy required to support an action for a declaratory judgment must be a controversy based upon legal rights and obligations. It must be shown that plaintiff has a legal interest in the alleged controversy. There is a controversy between the parties where there is a dispute as to their rights.

16 O. Jur. 2nd — Declaratory Judgment, Sec. 8, p. 638, holds:

“Necessity of Cause of Action Apart From That Created by Declaratory Judgment Statute.
“Jurisdiction of an action for declaratory judgment is not confined to cases in which the parties or one of them has a cause of action apart from that conferred by the act itself. The Declaratory Judgments Act contains a provision expressly authorizing the rendition of judgments whether or not further relief is or could be claimed. To hold that there must be a ‘cause of action,’ as that term is ordinarily used, would defeat the fundamental purpose and destroy the real value of the remedy.”

At Section 9 it is held:

“The granting of a declaratory judgment is within the sound discretion of the court, and the jurisdiction to grant such judgment is not limited by the terms of the statutes to those cases in which no other remedy is available either at law or in equity. On the contrary, the Code authorizes courts of record to declare rights, status, and other legal relations whether or not further relief is or could be claimed. * * *”

Sec. 34 Ibid — All persons shall be made parties who have or claim to have any interest that would be affected by the declaration and no declaration shall prejudice the rights of persons not parties to the proceedings.

The Buckeye Union Casualty Company has attacked the right of the Travelers Insurance Company to maintain this declaratory judgment action on the grounds that The Travelers is not a person who has a protectable interest or legal interest in the relief sought.

The contention continues that there is no right flowing from Buckeye to the Travelers; that since Gulf is not a party or claiming any interest, then Travelers has no standing in this court.

As set forth in Driskell v. City of Cincinnati, 66 Oh St 372, Syl. 1 and 2:

“1. A petition for a declaratory judgment is not sufficient against demurrer if there is not alleged facts which would give rise to a right-duty relation between the parties; which relationship is in dispute and which places the plaintiff in a position of peril or insecurity.
“2. A declaratory judgment can be rendered only in cases where there is a real controversy between adverse parties in a matter which presents a justiciable dispute.”

There is no question that the insurer and his insured would have a right to maintain this action. The Travelers Indemnity Company v. Cochran, Jr., 155 Oh St 305.

There would also be little doubt in the Court’s mind that Gulf Refining Company would have a right to maintain such action to determine which of said companies should defend and pay any judgment rendered. In this case Gulf Refining Company has no need to file such an action as Travelers has so far accepted the defense.

In the case of Continental Casualty Co. v. Buckeye Union Cas Co., 143 N. E. 2d 169, Common Pleas Court, Franklin County, Ohio, in a case involving a similar question to the one at bar, all of the parties were before the Court and no question was raised as to the Court’s jurisdiction to hear the case.

In the case of Pleasant Valley Lima Bean Growers and Warehouse Assn. v. Col.-Farm Insurance Company, 298 Pac. 2d, 109, a case on all fours with the present case, we are unable to determine if there are any other parties than the insurance companies except defendant’s cross-complaint asks a determination of rights of all parties concerned. There the Court determined rights under declaratory judgment act.

In the case of Travelers Indemnity Co. v. State Automobile Ins. Co., 67 Oh Ap 457, a case of declaratory judgment relating to coverage between two companies, all the parties were before the Court.

We come to the conclusion that the Court has jurisdiction to entertain a declaratory judgment action involving the question of coverage and right to defend between two or more insurance companies when all parties are before the Court. We must also conclude that an insured or insurer may ask for a declaration of rights. We also conclude that in this case, the Gulf Refining Company could have maintained this action or if a party hereto, the Court would have jurisdiction to entertain this case.

The question then presented is without Gulf Refining Company as a party, can The Travelers Insurance Company maintain this suit? This question is not intended to determine all the points of this case as we still have other questions which we must determine if we have jurisdiction. These questions would also go to right to grant relief. They are the question of loading and unloading, Employer-Employee, etc. In determining the question of the right of the party to maintain the action, we are not disposing of those questions.

Does the Travelers have a legal interest in the relief sought?

Is there a right flowing from the Buckeye Union Casualty Company to the Travelers?

Borchard explains “Legal Interest” in Borchard’s Declaratory Judgments (2nd Ed.) page 49:

“* * * in the more familiar executory action, the legal interest is sought in the ‘cause of action,’ but, as already observed, the narrow scope often given to this ambiguous term has served to conceal from view the many occasions and situations in which a plaintiff not yet physically injured or one seeking escape from dilemma and uncertainty by a clarification of his legal position has need for judicial relief not of the traditional kind. The wider opportunity and necessity for judicial usefulness disclosed by the declaratory judgment make necessary either a more flexible and comprehensive connotation of the term ‘cause of action’ or the employment of a less chameleonic term to indicate when the petitioner may be accorded judicial protection. Without losing sight of the necessity for jurisdictional facts, it is suggested that the term ‘legal interest’ meets the need.”

What would be Travelers legal interest in and to the Buckeye Union Casualty Company’s policy? Gulf would have a legal interest in Buck-, eye Union Casualty Company’s policy if all the facts justified it (which will be determined later) under III of declaration which is as follows:

“III. Definition of ‘Insured.’ With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *” and Item 5:
“The purposes for which the automobile is to be used are business, pleasure and commercial. * * * (c) Use of the automobile for the purposes stated includes the loading and unloading thereof. * * *”

Thus, if Gulf cared to, they could maintain this action provided other-facts would justify it. Travelers owes a duty to Gulf to defend in the type of actions set forth herein provided there is no other insurance available to Gulf. Gulf, with knowledge that Travelers has to defend, has no reason to involve itself in the expense of a law suit to require Buckeye to defend it. Thus, without the institution of a suit by Gulf, Travelers would be deprived of the right to determine and enforce the provision of its contract with reference to its contract being excess insurance over other available insurance. Thus they would be deprived of a legal right since they could not compel Gulf either to sue or become a party.

Since Buckeye has a coverage provision which, if all the facts warranted, would cover Gulf and cause the Travelers Insurance to become excess and since, if Buckeye policy under the fact would cover Gulf, Buckeye would then be the primary party to defend and pay to the limit of its policy any judgment or settlement, but could not be compelled to do so unless Travelers has a right to maintain this action.

To hold that Travelers had “no legal” interest or that there was no right flowing from Buckeye without a legal determination, is in contravention of equity as well as the reason and purpose of the Declaratory Judgment Act.

If Gulf does not desire to have the question of coverage determined, this cannot prevent Travelers from maintaining an action to determine coverage and defense; as they have a legally protective interest arising from the provisions of their policy which becomes excess to the Buckeye under certain facts which have to be determined in time to protect Gulf both as to defense and payment.

There is a right flowing to Travelers by way of Gulf from Buckeye where, under their policy, they recognize a right of coverage for Gulf under certain factual patterns, which would eliminate Travelers as having primary liability.

Further there is a controversy, as has been pointed out, which can be resolved by this action.

So far as the motion is concerned, Travelers has such a legal interest as to maintain this action.

The questions of Loading and Unloading and Employer-Employee relationship as to preventing this action will be discussed in order.

The second point presented is whether there is a duty to defend, based upon the allegations contained in the petition. The allegation is as follows:

“* * * the defendant through its employee who was then in the course of his employment with the defendant, handed down to this plaintiff the loading pipe from which diesel fuel had not been previously emptied and as a result thereof diesel fuel poured out of said pipe into the face of this plaintiff causing him to lose his balance and to fan from the top of the truck, striking his face on the truck door and then landing on his back on the ground.”

The question raised is whether this is loading and unloading the truck as specified in the Buckeye Union policy.

The answer to this question relates to the question of whether or not the Buckeye Policy becomes primary so as to make the Travelers’ policy excess.

If the accident did not occur as a result of the loading and unloading of the truck, then the duty to defend and coverage is owed by Travelers and not by Buckeye. If, on the other hand, the accident occurred while loading and unloading the truck, then Buckeye would owe a primary obligation to defend and pay, provided there are no other exclusions in their policy that would exclude their liability.

The act in question, which is gleaned from the petition filed by John Keiser, is that the truck had come to rest preparatory to receiving a load of Diesel fuel. The driver had opened the cock and was waiting for the pipe to insert it into the tank, at which time the employees of Gulf would turn it on and the loading would commence; that on this day, as the loading pipe approached the tank on the truck, oil poured out into the face of plaintiff, causing the injuries as set forth.

In the allegations of negligence, plaintiff says that the oil was either there from a previous loading or it was allowed to flow before pipe placed in tank.

Bobier, dba v. National Casualty Co., 143 Oh St 215, at page 221, holds:

“When then does the loading begin and the unloading cease? We think that the loading begins when the employees of the plaintiff connected with the truck receive the article and as part of a continuing operation place it upon the truck; and that the unloading ceases when the article is taken from the truck by such employees and as part of a continuing operation is delivered to the customer or to the place designated for delivery.” (Emphasis ours.)

Was the act complained of ‘loading’ as contemplated by the policy of the Buckeye Union Casualty Company.

Wagman v. American Fidelity and Casualty Co., 109 N. E. 2d, 592— a New York case at page 594, holds:

“The interpretation of clauses such as those in Gilbert’s policy, defining ‘use’ of the insured automobile as including ‘loading and unloading,’ has occasioned doctrinal division among the authorities, The narrower construction, adopted in some states, insists upon a close connection between the vehicle and the acts for which coverage is claimed. ‘Loading’ is interpreted by the courts of those jurisdictions as including only the immediate act of placing the goods upon the vehicle, — excluding the preliminary acts of bringing the goods to the vehicle; and “unloading” is taken to embrace only the operation of removing the goods from the vehicle to a place of rest. See, e. g., St. Paul Mercury Ind. Co. v. Standard Accident Ins. Co., 216 Minn. 103, 11 N. W. 2nd 794; Stammer v. Kitzmiller, 226 Wis. 348, 276 N. W. 629. The broader construction, adopted in a majority of the jurisdictions which have passed upon the question, is that ‘loading and unloading’ embrace, not only the immediate transference of the goods 'to or from the vehicle, but the ‘complete operation’ of transporting the goods between the vehicle and the place from or to which they are being delivered. See e. g., State, ex rel. Butte Brewing Co. v. District Ct., 110 Mont. 250, 100 P. 2d 932; Bobier v. National Cas. Co., 143 Oh St 215, 54 N. E. 2nd 798; Conrad v. Duffin, 158 Pa. Super. 305, 44 A. 2d 423, 160 A. L. R. 1251; London Guar. & Accident Co. v. C. B. White & Bros., 188 Va. 195, 49 S. E. 2d 254. The latter view impresses us as sounder, as more fully carrying out the aim of the policy — to cover the entire operation of making commercial pickups and deliveries in the business of the insured carrier — and, indeed, the courts in this state have already signified their approval of it.”

Lowry v. R. H. Macy & Co., 119 N. Y. S. 2d. 5, at pages 9 and 10 holds:

“Two schools of legal thought in the various jurisdictions have developed as to the proper construction to be given the clause ‘loading and unloading.’ One is that the coverage extends only to the point where the merchandise is physically removed from the truck and first ‘comes to rest.’ The other is that the coverage persists beyond that point and until the merchandise actually is delivered to the consignee and arrives at the ultimate point of delivery designated by such consignee, even though such point be somewhere on the latter’s premises.

The latter viewpoint is referred to as the ‘complete operation’ doctrine, (Emphasis ours.)

George Spurlock v. Boyce Harvey Machinery Inc., 90 So. 2d, p. 417, holds at page 422:

* * * “Practically all authorities are agreed that in such insurance contracts the phrase ‘including loading and unloading' is a phrase of extension. It expands the expression ‘the use of the truck’ somewhat beyond its connotation otherwise so as to bring within the policy some acts in which the truck does not itself play any part. It deals with a period when the truck itself is at rest, but the goods are being moved onto or off the truck.” Pacific Automobile Ins. Co. v. Commercial Casualty Insurance Co., 180 Utah 500, 161 P. 2d 423, 424, 160 A. L. R. 1251, at page 1253.
“* * * 4. There is a conflict of authority in regard to the scope of loading and unloading operations, the courts adhering either to the ‘coming to rest’ doctrine or to the ‘complete operation’ doctrine.”
“ ‘Coming to rest’ doctrine
“The theory under which the scope of an automobile liability insurance policy is least broadened by the addition of the ‘loading and unloading’ clause is the so-called ‘coming to rest’ doctrine. According to this doctrine unloading within the meaning of the ‘unloading’ clause comprises only the actual removing or lifting of the article from the motor vehicle up to the moment where (a) the goods which were taken off the automobile have actually come to rest and (b) every connection of the motor vehicle with the process of unloading has ceased. * * *
“The rule probably can be stated that under this view, the term ‘loading’ covers the period of time and events beginning when the articles are started in movement which movement is not interrupted or broken by rest or pauses, until the articles are placed in or on the motor vehicle.
“It should be noted that even under this theory loading and unloading are held to include more than the mere acts of placing the goods on the automobile or of removing them therefrom. No case has been found that would give the clause such narrow construction.” * * *
“ ‘Complete operation’ doctrine.
“Giving the ‘loading and unloading’ clause a somewhat broader construction than it has under the ‘coming to rest’ doctrine, some courts take the view that such clause covered the entire process involved in the movement of goods from the moment when they are given into insured’s possession until they are turned over at the place of destination to the party to whom delivery is to be made. This theory, which may appropriately be called the ‘complete operation’ doctrine, omits, for all practical purposes, any distinction between ‘unloading’ and ‘preparatory actions.’ ”
“However, we believe it can safely be said that a majority of the more recent cases follow the more liberal doctrine that the ‘loading and unloading’ clause is to be interpreted to cover all the steps that can be regarded as an integral, continuous part of the complete operation of transferring the goods into or out of the insured motor vehicle. Of course, all cases agree that where the loading and unloading begins or ends must by necessity vary greatly with the facts of each case.”
“Cases cited by appellant-Travelers in support of its contention that under the ‘complete operation’ doctrine the liability to plaintiff Spurlock was covered by the ‘loading and unloading’ clause of the American Mutual Automobile Liability policy include: Pacific Automobile Ins. Co. v. Commercial Casualty Ins. Co., 108 Utah 500, 161 P. 2d 423, 160 A. L. R. 1251; Wagman v. American Fidelity & Casualty Co., Inc., 304 N. Y. 490, 109 N. E. 2d 592; Raffel v. Travelers Indemnity Co., 141 Conn. 389, 106 A. 2d 716; Connecticut Indemnity Company v. Lee, 1 Cir., 168 F. 2d 420; Lowry v. R. H. Macy & Co., Sup., 119 N. Y. S. 2d 5.”
it* sfc *
“In the very recent case of Bituminous Casualty Corporation v. Travelers Insurance Company, D. C., 122 F. Supp., 197, the personal injuries of the truck driver, who was the named insured, were held covered under the ‘loading and unloading’ clause of his own policy. They were caused by the negligence of the consignor’s power-shovel operator, who struck the truck’s owner-driver with his power-shovel which was about to load some lime into the truck for consignment; the consignor’s employee (the power-shovel operator) was held to be an omnibus assured under the policy, as engaged in loading the insured truck.”
“However, we believe it can safely be said that a majority of the jurisdictions, and a majority of the more recent cases, follow the more liberal doctrine that the ‘loading and unloading’ clause is to be interpreted to cover all the steps that can be regarded as an integral, continuous part of the complete operation of transferring the goods into or out of the insured motor vehicle. Of course, all cases agree that where the loading and unloading begins or ends must by necessity vary greatly with the facts of each case.”
“Whether the actions preparatory to loading the goods are so directly related to use of the truck in question as to be within the coverage of the ‘loading and unloading’ clause is a matter which must vary greatly with the facts of each case — but here, with the truck present at the premises and some of the goods already loaded and in the midst of loading the remainder, and when the injury was sustained as a direct result of an activity directly related to such loading, we think coverage must unquestionably be sustained.” (Emphasis ours.)

We are left with a determination of whether the act of moving the pipe toward the truck might be considered as a part of the loading as set out in the Buckeye policy.

The answer to this question depends upon the facts in this case, see 90 So. 2d, 417, above.

Socony Vacuum Oil Co. v. Continental Casualty Co., 144 Oh St 382, Syl. 1, is as follows:

“The duty of a liability insurance company under its policy to defend an action against its insured is determined from the plaintiff’s petition, and when that pleading brings the action within the coverage of the policy of insurance, the insurer is required to make defense regardless of its ultimate liability to the insured.”

Bloom-Rosenblum-Kline Co. v. Union Indemnity Co., 121 Oh St 220, Syl. 1:

“Under an automobile insurance policy wherein the company insured against loss from liability imposed by law upon the assured for damages accidentally suffered or alleged to have been accidentally suffered by any person or persons, caused by the automobile vehicles described or referred to in said policy, and agreed, if suit be brought to enforce such claim for damages, to ‘defend such suit whether groundless or not’ and bear the expense incurred by it in defending such suit, the company is required to defend a suit wherein the cause of action is based upon a claim for damages covered by the policy, and if the company failed to comply with that provision of the policy it is liable to the assured for the cost and expense of making its defense in such case, notwithstanding the suit was groundless and was defeated.”

The facts set forth in the Amended Complaint would then determine whether or not Buckeye Union would be required to defend as against Travelers. Was the negligence, if any, caused by Gulf’s employees while loading the truck as defined in the cases cited herein?

Buckeye’s policy agrees to insure a non-owner while using or responsible for the use of the truck and use is to be considered “Loading and Unloading.”

Many fact situations present themselves for discussion as to when loading and unloading occurs to bring the accident within the terms of the policy.

If the hose or pipe was inserted in the tank and an accident occurred, there would be no question but that the accident occurred while loading.

If John Keiser had touched the pipe and was guiding it to insert into the tank, this also would be sufficient to establish loading.

In the case at bar, Keiser was still using or responsible for the use of the truck. He had performed no act at the time of the accident which would tie in the movement of the pipe to the act of loading or the use of the truck. Gulf was not using or responsible for the use of the truck at the time of accident as it had not yet made connection and started the movement of the product.

There is a distinction between the cases involving loading of goods and loading of oil. In the loading of goods the loading commences when the goods are put on a push car to be conveyed to the truck or when they come to rest at the delivery point. This is the broad concept of loading and unloading as set forth in the cases herein with which we agree.

Loading commences when goods have started to move from the place of rest to the vehicle and unloading ceases when the goods have moved from the vehicle to the place of rest. The essential term is movement; whether by dolly, two-hand truck, or pipe, or other means; and distance or time are not the essential factors. So long as movement once started is uninterrupted, the goods are in the process of loading or unloading.

The truck covered by the Buckeye Policy was not yet within the contemplated use of Gulf nor was Gulf responsible for its use as no goods had started moving toward the tank in the process of loading.

The availability of the truck for loading in and of itself would not bring it within the provision relating to loading or unloading! There must be some act which would indicate that the process had started to completion.

Two cases have been brought to the Court’s attention with reference to loading and unloading in both cases the process of loading had started before the accident.

The first case is Bituminous Cas. Corp. v. Travelers Ins. Co., 122 Fed. Supp. 197. In this case, the facts are at p. 199:

“An employee of the Rochester Quarry Company, one Ed Wegman, operated the power shovel. When the truck was about one-fourth full of lime, and as the shovel was about to deposit more lime into the truck, something happened to the power shovel; according to Wegman, a gear slipped or jumped. In any event, Wegman could not control the arm which held the shovel and the arm kept swinging. As he tried to lower the shovel to the ground, he was not able to avoid contact with the truck and the shovel hit Williams, thereby injuring him.”

We thus see here that movement had commenced and loading is thus considered as continuing until the truck is loaded.

The other case is the case cited herein, being Spurlock v. Boyce-Plarvey Machinery, 90 So. 2d 417, which is determined on theory of “Complete operation doctrine,” the essential point of the case is cited at p. 426 of the case and page 17 of this decision, again we see that movement had commenced as a bundle had already been placed on the truck.

In all cases cited to show the extent of loading and unloading, we find that movement had started or goods were actually placed in the truck.

Under this provision there had not come into being yet, the operation of the Insurance Contract of Buckeye as to coverage and with no coverage there could be no right to defend.

The final proposition to be determined involves the exception in the Buckeye Policy with reference to exclusions of employees. Said policy provides, under the heading “Exclusions”:

“This policy does not apply * * * (d) under coverages A and C, to bodily injury to, or sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law; ie) under coverage A, to any obligation for which the insured or any company as his insurer may be held liable under any workmen’s compensation law * *

Does the fact that John Keiser was an employee of R. T. McCracken exclude him from coverage under the Buckeye Policy provided the Buckeye policy would be the primary policy under the facts herein?

Pleasant Valley Lima Bean Growers & Warehouse Assn. v. Cal-Farm Insurance Company 298 P. 2d 109, holds at p. 112:

“(1) Cal-Farm maintains that coverage does not extend to plaintiff and Croker under the omnibus clause, but before considering the interpretation of that clause which is advocated, we shall discuss the separate contention that any liability of Brucker or Pleasant Valley for bodily injury to Nungaray, Brucker’s employe, is expressely excluded from coverage under its policy by the above quoted exclusion clause. It is Cal-Farm’s position that the clause “bodily injury to, sickness, disease or death of an employee of the insured” must be read “bodily injury to. sickness, disease or death of any employee of only the named insured”: hence, since Nungaray was Brucker’s employe acting within the scope of his employment at the time of the accident, insurance coverage under the “omnibus clause” would be excluded as to Pleasant Valley and Croker, notwithstanding the fact Nungaray was not an employe of Pleasant Valley or Croker. Croker and Pleasant Valley contend that the exclusion clause of the policy must not be read restrictively, that the term “insured” in that clause is not limited to the insured named in the policy but extends, due to the “omnibus clause,” to the other persons who qualify as additional insured, and that the exclusion clause, properly interpreted, operates to exclude coverage only in cases where the injured party is the employe of the particular insured (whether named insured or additional insured) who is seeking protection under the policy. Thus, on this hypothesis, since Nungaray was not employed by either Pleasant Valley or Croker, Cal-Farm’s obligations under its policy are not extinguished by reason of the fact that Nungaray was an employe of Brucker, the named insured. We agree with the latter interpretation.” (Emphasis ours.)

Also at page 114:

“(7) The exclusion clause must be read as a whole and we think leads inescapably to the conclusion that it means only that the coverage, whether of the named or the additional insured, does not apply to anyone who has liability under workmen’s compensation laws. As Pleasant Valley and Croker are additional insureds under defendant’s policy, and as there is nothing in the record to show that either Croker or Pleasant Valley is obligated to Nungaray under workmen’s compensation law, with respect to the accident, it is clear that Pleasant Valley and Croker are not excluded from policy protection as to an action brought by Nungaray against them for personal injuries.”

In the case at bar, Gulf would have the benefit of the Buckeye policy provided it came within the exceptions stated. When these exceptions operated, John Keiser did not become an employee of Gulf by the process of osmosis; thus the exclusion clause would not operate as to Gulf. To accept Buckeye’s theory we would be faced with the anomaly that they had to defend Gulf under their exclusion, but could excuse it by stating that John Keiser was an employee of McCracken. This would present an impossible situation that could never be resolved.

Buckeye’s policy refers not to an employee of “the named insured” (McCracken), but simply to an employe of “the insured”; thus it removes coverage only when the injured person is an employee of the particular insured he is suing.

As stated in the Pleasant Valley case, supra, John Keiser at the time of the injury was not an employee of Gulf against whom he had a cause of action and to whom Buckeye would extend coverage under certain conditions; which, if met, would not allow Buckeye to use their employee exclusion clause, as at the time of the accident John Keiser would not come under this exception.

The motion of defendants Buckeye, which has been considered as a demurrer, will be sustained.


text:
    SARCHET, d. b. a. GEM CITY REALTY, Plaintiff-Appellee, v. BUNN et, Defendants-Appellants.
    Ohio Appeals, Second District, Greene County.
    No. 583.
    Decided November 29, 1957.

      Weber & Hogue, Fairborn, Forrest J. Hogue, of Counsel, for plaintiffappellee.
    Selwyn C. Jackson, Dayton, for defendants-appellants.
   OPINION

By HORNBECK, PJ.

The appeal is from an order of the trial court overruling defendants motion to reconsider its decision overruling defendants motion to vacate a judgment taken against them on a cognovit note.

At the outset, we are met with a motion of appellee to dismiss the appeal for want of prosecution because the notice of appeal is not directed to a final order.

The claim of appellee is that the motion to reconsider the refusal to vacate the cognovit judgment is not a motion for a new trial for the reason that it required no determination of an issue of fact.

Appellee cites State, ex rel. Longman, et al, v. Welsh, 133 Oh St 244; Morrison v. Baker, Exec. 42 Abs 349; Tresemer v. Gugle, et al, 70 Oh Ap 409. All of the cited cases were determined before the amendment of §11575 GC, and when it provided that “A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury, * * * or a decision by the court. The statute, defining New Trial, §2321.17 R. C., has read differently for several years and includes a re-examination of all issues whether of law or fact. For full discussion of the effect of the amendment to §11575 GC, see Rismiller, Admrx. v. Dayton Power & Light Co., 70 Abs 603, by this court, opinion by Wiseman, P. J.

The motion to re-consider the order refusing to vacate the cognovit judgment was a motion for new trial within contemplation of this statute. However, there is a procedural requirement in §2321.19 R. C.. essential to the filing of a motion for new trial which appellant did not observe. This section of the Code provides that the application for a new trial must be made within ten days after the journal entry of a final order * * * has been approved by the trial, court, in writing, and filed With the Clerk of the Court for journalization. The entry in this case overruling the motion to vacate the judgment was entered March 26, 1957. The motion to reconsider this order was filed April 17, 1957, almost a month after the order of March 26, 1957. The motion was not filed within the statutory period authorizing the trial judge to consider it.

It will also be observed that, even if we could consider the order refusing to reconsider the motion to vacate, we could not reach the amended answer tendered as a defense to the action on the cognovit note because no leave to file was taken of it. Appellant made application for leave to file this amended answer, but the Court did not pass upon it.

When we reach the appeal, several developments appear in the transcript and in the bill of exceptions which preclude us deciding the question sought to be raised.

The judgment in this case was taken on August 30, 1956 and January 16, 1957, execution was issued. On January 23, 1957, return was made by the Sheriff showing that the sum of $429.56 had been paid to him which sum satisfied fully the judgment, interest and costs in the case. This sum was paid to the Clerk of Courts. The satisfaction of this judgment disposed of it completely and no proceeding was thereafter in order to open up a judgment which had been fully satisfied. If appellants have any right of recovery from the plaintiff, it must take some form of action other than a proceeding to vacate the judgment which has been satisfied.

When the motion to vacate the judgment came on for hearing the parties took no testimony but adopted the method of offering statements of counsel. Respective counsel put into the record what each claimed but at no time was there agreement between them as to the facts.

The most serious difficulty to a determination of the error sought to be raised is that it was commonly agreed that the right of the plaintiff to take the cognovit judgment rested, if at all, under the provisions of a written contract. Plaintiff’s right under this contract was the basis of dispute. Defendant insisted that plaintiff was not a party to the contract and had no beneficial interest in it or the note sued on. On the other hand, plaintiff contended that it had ownership of the note under the contract and to the amount for which the judgment was taken. Notwithstanding the extended discussion, all of which was directed to the meaning of the contract and its effect on the parties, it was not offered in evidence and is not before us. Manifestly, we can not determine the rights of the parties unless and until we have this contract. In the situation thus developed, we must indulge the presumption of the validity of the order of the trial judge refusing to vacate the cognovit judgment or to reconsider this order.

If we could reach the question of the sufficiency of the tendered answer to constitute a defense to the petition, we would be required to say that it does not meet the essential requirements of such an answer. An answer which would be sufficient in an action wherein the defendant had the right in the first instance to answer the petition may be inadequate on a motion or petition to vacate a judgment.

For cases on the subject at hand see Lee v. Benedict, 82 Oh St 302; Bulkley v. Greene, 98 Oh St 55; Cleveland Trust Co. v. Kolar, 102 Oh Ap 367; Canal Winchester Bank v. Exline, 61 Oh Ap 253; Miller v. McGill, 15 Abs 511; Metzger v. Zeissler, et al, 13 O. N. P. (N. S.) 49.

The judgment will be affirmed.

WISEMAN and CRAWFORD, JJ, concur.


author: By THE COURT.

text:
    BERRY, d. b. a. PEACOCK GARDENS, etc., Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5680.
    Decided November 21, 1957.
    John D. Phillips, Columbus, for appellant.
    William Saxbe, Atty. Geni., S. Noel Melvin, Chester Hummell, Asst. Attys. Geni., Columbus, for appellee.
    (FESS. PJ, DEEDS, J, of the Sixth District; HORNBECK, J, of the Second District, sitting by assignment in the Tenth District.)
   OPINION

By THE COURT.

Appellant was charged with and found guilty by the Department of an illegal sale of whiskey on Sunday, April 3, 1955, in violation of §4301.22 R. C. On an appeal to the Board of Liquor Control, the conviction was affirmed and on appeal to the Court of Common Pleas, the action of the Board was affirmed. From the order of the Common Pleas Court this appeal is prosecuted.

Six errors are assigned: That the Board abused its discretion in arriving at its judgment; that the judgment was arbitrary and unreasonable and not supported by reliable evidence; contrary to law; and, error in admitting evidence prejudicial to appellant and also in excluding evidence to the prejudice of appellant.

All of the assignments of error are directed to the action of the Board and not to the finding and judgment of the Common Pleas Court. However, all of the assigned errors may be considered on this appeal.

The Common Pleas Court found first that appellant had not observed Rule XXI-A of the Common Pleas Court and had filed no brief. However, the Court also found that “the order of the Board of Liquor Control is supported by reliable, probative and substantial evidence and is in accordance with the law.”

No specific error was noted to the action of the trial judge under Rule XXI-A, nor does it appear that any specific objection was inter- . posed upon application for rehearing. The appellant noted general exceptions.

We have carefully read the record which discloses that there was proof undenied of the Sunday sale of whiskey on the permit premises. The sale was made by a person whom it is admitted was left in charge by the permittee of the permit premises at the time when the sale was made.

Permittee insisted that she had left the premises for a short time only to go to church and while on the stand, before the Board, was asked this question, in chief:

“Q. Did you give any instructions to Stanley Koczwara before you left as to what he was to do?” (Koczwara was the man who made the sale.)
“A. I did.”
The question was then put:
“What were they?”

Objection was interposed and sustained whereupon counsel for permittee said,

“That’s all. Thank you, Mrs. Berry.”

It would have been proper to have permitted the question to have been answered, not necessarily as a complete defense to the charge, but as it might have affected the penalty if the Board affirmed the conviction. However, it will be observed that no objection was noted to the ruling of the Board. This is essential to the assignment that the Board erred in refusing to admit the testimony.

We read the record, the order of the Board is supported by reliable, probative and substantial evidence and is therefore in accordance with law. No defense appears in the record which was made before the Board. No error assigned is well made.

The judgment of the Common Pleas Court will be affirmed.

FESS, PI, DEEDS and HORNBECK, JJ, concur.


author: By DANACEAU, J.

text:
    SIMMONS et, Plaintiffs, v. CLEVELAND HEIGHTS (City), A Municipal Corporation, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 717182.
    Decided April 29, 1959.
    Simmons, Metzner, McNelly, Torbet & Vilas, Cleveland, for plaintiff.
    King A. Wilmot, Director of Law, Cleveland Heights, for defendant.
   OPINION

By DANACEAU, J.

Charles D. and Catherine B. Simmons, owners and operators for more than one year of an off-street parking lot, bring this action to enjoin the City of Cleveland Heights from appropriating such lands for municipal off-street parking facilities and from proceeding further in an appropriation proceeding for such purpose now pending in this court.

The owners of the property claim that there is no necessity for such municipal off-street parking facility, that the city is acting unreasonably and unlawfully, and that the city lacks authority to appropriate the lands in question by reason of the provisions of §717.05 R. C., the pertinent parts of which read:

“Municipal corporations may lay out, establish, construct, maintain and operate within their respective corporate limits, off-street parking facilities for motor vehicles, and in connection therewith and for such purpose may acquire by purchase, gift, devise, exchange, lease, or sublease any existing off-street parking facilities or any real estate or interest therein required for the construction of such parking facilities. In the exercise of the powers granted in this section for the acquisition of real estate, municipal corporations may exercise the power of eminent domain in the manner provided by §§719.01 to 719.21 inclusive, R. C. Such power of eminent domain shall not extend to or be exercised for the purpose of acquiring real estate owned, leased, or held by a public utility or railroad, or any real estate upon which off-street parking facilities, open to the general public have been established for a period of one year prior to the proposed acquisition thereof.”

The principal issue is presented by the last proviso of said §717.05 R. C., that such power of eminent domain shall not extend to or be exercised for the purpose of acquiring real estate upon which off-street parking facilities open to the general public have been established for a period of one year prior to the proposed acquisition thereof. The question is thus presented, is that proviso restricting the authority of a municipal corporation from exercising power of eminent domain under the circumstances noted constitutionally valid and effective?

Section 3, Article XVIII, Ohio Constitution, reads:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”

There is here involved no local police, sanitary or similar regulation and we are therefore not concerned with a conflicting regulation of general law. Directly granted by the constitution to municipalities are all powers of local self-government. The grant is to all municipalities, whether they have home rule charters or not. That ail municipalities, with or without charters, have the power to acquire, maintain, and operate off-street parking facilities and that such facilities serve a public municipal purpose was settled in State, ex rel. Gordon v. Rhodes, 156 Oh St 81.

All the powers of local self-government granted by the constitution include the power of eminent domain. In State, ex rel. Bruestle v. Rich, 159 Oh St 13, the court in the syllabi said:

“7. ‘All powers of * * * self-government’ as set forth in Section 3, Article XVTII, Ohio Constitution, include the power of eminent domain.”
“9. No provision of the Constitution of Ohio authorizes the interference by general laws with the exercise of the power of eminent domain, to the extent that such power is granted to municipalities by Sections 3 and 10, Article XVIII, Ohio Constitution.”

It is thus settled by the highest court of our state that no provision of the state constitution authorizes the interference by general laws with the exercise of the power of eminent domain by a municipality to the extent that such power is granted.

The City of Cleveland Heights has a home rule charter which is silent as to the procedure to be followed for the appropriation of property in the exercise of the power of eminent domain. Nor are there, any ordinances providing for such procedure. It necessarily follows that with respect to all matters of procedure the general statutes must be pursued. Pursuing the general statutes we are confronted with the proviso of §717.05 R. C., hereinbefore set forth. The question remains,— is that proviso a matter of procedure or does it go beyond mere procedure and restrict the exercise of a power granted all municipalities directly by the constitution of Ohio and with which the General Assembly may not interfere?

The portion of the section in dispute states that such power of eminent domain shall not extend to or be exercised for the purpose of acquiring any real estate upon which off-street parking facilities open to the general public have been established for a period of one year prior to the proposed acquisition thereof. It is quite obvious that the proviso exceeds procedural direction and restricts the substantive right of the municipality to the exercise of a power of local self-government granted by the constitution and to that extent the statute is in conflict with Article XVIII, Section 3, Ohio Constitution. The last provision of §717.05 R. C., is therefore invalid and of no effect.

The plaintiffs have been operating their off-street parking lot in a rather liberal and loose fashion under varying arrangements with tenants, merchants, customers, and other persons. There is no certainty that such arrangements will continue indefinitely nor is there any legal certainty that the use of the property for off-street parking will continue. By appropriating the lands for a public municipal off-street parking facility, operation under firm and enforceable regulations will be possible and its continued use for such parking purposes assured. Furthermore the need for the public facility is amply demonstrated by the existing use of the property.

The necessity of the appropriation and the location and extent of the property to be taken rests in the discretion of the municipal authorities, and will not be interfered with by the courts in the absence of fraud, bad faith or abuse of discretion. All that is required is a reasonable rather than an absolute necessity (19 O. Jur. 2d 636). The evidence before the Court does not support any claim of bad faith or abuse of discretion and there is not even a suggestion of fraud.

With respect to the allegations of damage, the plaintiffs are directed to the appropriation proceedings pending in this court in which the damages for the property taken and to the residue will be assessed and determined.

Upon consideration of the pleadings and the evidence, the Court finds that there is necessity for the public municipal off-street parking facility and for the appropriation of the property herein involved and that in proceeding to appropriate such property the City of Cleveland Heights is acting reasonably and lawfully.

The petition for an injunction is hereby denied and the costs are assessed against the plaintiff. O. S. J.


author: By THE COURT:

text:
    CLARK, Plaintiff-Appellant, v. DAYTON (City) et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2368.
    Decided December 10, 1956.
    Louis C. Capelle, Cincinnati, for plaintiff-appellant.
    Herbert S. Beane, City Atty., Dayton, By James W. Drake, Joseph P. Duffy, Asst. City Attys., for defendants-appellees.
   OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Municipal Court of Dayton, overruling plaintiff-appellant’s motion for judgment on the pleadings, and the plaintiff electing not to proceed further, dismissing the action.

Plaintiff filed an affidavit in replevin to obtain possession of a quantity of liquor which was taken by the Dayton Police Department in a raid. Plaintiff posted a bond in the sum of $1,000.00, and the defendant posted a redelivery bond in the sum of $1,500.00. No appraisement of the property was made as required by §2737.14 R. C. No answer was filed by defendant, but the defendant made appearance on the day the case was set for trial.

On the day of trial counsel for plaintiff orally moved for judgment on the pleadings. Plaintiff claimed the defendant was required to file an answer. The rules of court do not require an answer “in actions for the recovery of personal property, when the appraised value does not exceed one hundred dollars.” There being no appraisement, this Court cannot find from the record that the property had a value in excess of one hundred dollars, and that an answer was required. The motion for judgment on the pleadings was properly overruled.

Conceding, without deciding, that the property was actually worth far in excess of $100.00, as indicated by the amount of the bonds filed, the motion filed by plaintiff was essentially a motion to enter a default judgment for failure to file an answer. Rule 20 of the Court provides that when a party is represented by counsel default judgment may be rendered' “only after the expiration of one rule to plead within seven days after the entry is filed.” Under the rule, a default judgment was not in order.

The plaintiff elected not to present evidence in support of his claim. Upon this state of the record the action was properly dismissed.

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

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


author: By MILLER, J.

text:
    CHAMBERS, Plaintiff-Appellee, v. ROBERT, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5918.
    Decided January 27, 1958.
    Reeves & Herron, Robert L. Herron, of Counsel, Columbus, for plaintiff-appellee.
    Power, Griffith & Jones, Sidney Griffith, J. Raymond Prohaska, of Counsel, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court in favor of the plaintiff-appellee and entered upon the verdict of a jury. The action was one for damages growing out of an automobile collision which occurred at the intersection of East Main Street and Parsons Avenue, in the City of Columbus, Ohio, both of which are public thoroughfares, and traffic at said intersection being controlled by a duly erected traffic light. Main Street runs in a general easterly and westerly direction and Parsons Avenue in a northerly and southerly direction. The plaintiff was a passenger in a 1946 Packard automobile, being driven north on Parsons Avenue by her husband, and the defendant was driving a 1955 Ford automobile east on Main Street.

The case went to the jury upon two specifications of negligence set forth in the petition, to wit:

(1) That defendant failed to yield the right of way to the motor vehicle in which the plaintiff was a passenger, and

(2) That the defendant failed to apply his brakes, swerve or divert the course of his motor vehicle to avoid striking the motor vehicle in which the plaintiff was a passenger.

The issues of the case involved a determination of which vehicle had the green light in its favor and was, therefore, entitled to the right of way through the intersection, and also whether or not the defendant exercised ordinary care after observing the northbound car in the intersection. There was a direct conflict in the testimony as to which car had the green light upon entering the intersection.

The record reveals that during the course of the direct examination of one of the plaintiff’s witnesses, a blackboard was used on which appeared an unsealed drawing of the intersection, and the witness depicted the relative positions of the two vehicles within the intersection during, before and after the collision. At the close of this witness’ examination, the plaintiff obtained the court’s permission to take a photograph of the said blackboard as it then appeared. Thereafter, the photograph was taken and admitted into evidence over the defendant’s objections and identified as plaintiff’s Exhibit “E.”

The first assignment of error urges that the court committed prejudicial error in the admission of this exhibit into evidence. The admission of the photograph is tantamount to the admission of the blackboard itself into evidence.

In the case of Miller v. Loy, 101 Oh Ap 405, this court held that such a blackboard was not competent evidence. In the cited case Judge Fess says at page 407:

“* * * The use of blackboards at a trial is common practice. The extent to which a blackboard sketch may be used also rests in the sound discretion of the trial court. Cincinnati Street Ry. Co. v. Waterman, 50 Oh Ap 380, 198 N. E., 494. Cf. Gibson v. Johnson, 69 Oh Ap 19, 42 N. E. (2d), 689; Burnside v. Cincinnati St. Ry. Co., 93 Oh Ap 456, 113 N. E. (2d), 638; 9 A. L. R. (2d), 1044, 1074. It has been held that counsel may use diagrams and calculations not in evidence, in argument to the jury? 88 Corpus Juris Secundum, 348, Section 177, citing Clisby v. Mobile & Ohio Rd. Co., 78 Miss., 937, 29 So., 913; Haley v. Hockey, 199 Misc., 512, 103 N. Y. Supp. (2d), 717. It is to be observed, however, that upon objection timely made the jury should be instructed that neither such diagram nor argument of counsel is evidence. Since neither the arguments of counsel nor a photograph of the writing upon the blackboard is incorporated in the record, no error appears.”

We adhere to our ruling in the above cited case and conclude that Exhibit “E” should not be admitted into evidence and, in so doing, the court committed error. The question, therefore, arises whether or not the error was prejudicial to the defendant. We note that counsel for the defendant said in his statement of the case on page 3 of his brief:

“The central issue of the case involved the determination of which vehicle had the green light in its favor and was thereby entitled to the right of way through the intersection.”

Now just how could this photograph, depicting the position of the cars, in any way influence the jury into believing that the traffic signal was green or red for the drivers of either of the automobiles when they arrived at the intersection?

An examination of plaintiff’s Exhibit “E” reveals that it contains a drawing of the intersection of Parsons Avenue and Main Street, showing five ears located at different places in or near the intersection. The map does not indicate the color of the traffic light at any time for either of the approaching cars. Neither does it indicate whether, or not the defendant exercised ordinary care in an attempt to avoid the collision. These were the questions for the determination of the jury, and it is our conclusion that admission of the exhibit under consideration could not have been prejudicial to this defendant and therefore, the admission of the same does not constitute reversible error.

It is next urged that the court erred to the prejudice of the defendant in its general charge to the jury. We have examined the charge in its entirety and are of the opinion that the charge correctly states the law applicable to the issues presented, and this assignment is not well taken.

Finally, it is urged that the verdict of the jury is excessive and against the manifest weight of the evidence. Our examination of the record, relevant to this assignment of error, discloses that there was a conflict in the evidence as to the extent of the plaintiff’s injury. If credence is given to that offered in behalf of the plaintiff, then we cannot say that the verdict is excessive or against the manifest weight of the evidence. The jury heard and saw the various witnesses and it was required to determine the weight to be given to their testimony. In so doing, we cannot say that the verdict is not supported by the proper degree of proof.

Finding no prejudicial error in the record, the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.