author: By FESS, J.

text:
    STATE, ex rel. CLEVELAND CONCESSION CO., Plaintiff-Appellee, v. CLEVELAND (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22026.
    Decided June 18, 1951.
    Spieth, Spring & Bell, Morton Stotter, Cleveland, for plaintiff-appellee.
    Lee C. Howley, Director of Law, Jos. F. Smith, Asst. Director of Law, Parker Fulton, Special Counsel, Cleveland, for defendant-appellant.
    (CARPENTER, PJ, FESS, J, CONN, J, of the 6th District sitting by designation in the 8th District.)
   OPINION

By FESS, J.

Separate appeals on questions of law by respondents and relator from a judgment of the Common Pleas Court. The respondents are the City, the several members of its Board of Control, including the Mayor and the Director of Public Properties.

Relator, an unsuccessful bidder for a public contract, brought its action against the respondents, in which it alleges that it is the highest responsible bidder for the contract for the operation of the concessions at the -Cleveland Municipal Stadium for a period of ten years and that respondents awarded said contract to Berio Vending Corporation (not a formal party herein and hereinafter referred to as “Berio”); that respondents have failed in their duty in awarding the contract to Berio; that upon the basis of all bids submitted, relator is the only qualified bidder and is therefore the highest qualified bidder and that the award to Berio was a clear violation of the discretionary powers, duties and obligations of the respondents; that relator has been wrongfully and illegally deprived of said award and has no plain or adequate remedy at law. Relator prays that a writ of mandamus issue and respondents be ordered to rescind the award to Berio and also be ordered to award said contract to relator.

After a somewhat extensive hearing the trial court found that Berio was not a qualified bidder in that it did not possess the necessary requisites and qualifications contained in the specifications and referred to in the invitation to bid; that relator was a qualified bidder; and that respondents violated their legal duty in awarding the contract to Berio and that such award was contrary to law; and that the relator was entitled to the writ.

The court decreed that the award made to Berio and that the contract made pursuant thereto, be set aside and held for naught; and ordered respondents to award and enter into a contract, in accordance with a bid received from a qualified bidder, or, in the alternative, to reject all bids and readvertise with the same or other suitable substitute specifications, or to take such other action as may be authorized, according to law. A peremptory writ of mandamus was ordered issued for such purpose.

Respondents appeal from the judgment cancelling the award and the contract. Relator appeals from the failure of the court to award the bid and contract to it.

On February 27, 1950, the Cleveland City Council enacted an ordinance providing for the concession agreement, Section 1 of which reads as follows:

“That the Director of Public Properties be and he hereby is authorized and directed to enter into a concession agreement with the highest responsible bidder, after advertising as provided by Section 108 of the Charter of the City of Cleveland, for the privilege of operating the refreshment and merchandise concession at the Cleveland Stadium for a period not exceeding ten years subject to the terms and conditions set forth in the Invitation to Bid.”

It will be noted that no comma appears between the words “years” and “subject.” The limitation should therefore be considered to apply to the privilege of operating the concession and not by way of a limitation upon the phrase “highest responsible bidder.”

Although the Director of Public Properties was the only official authorized and directed to enter into the agreement and no reference was made in the ordinance to the Board of Control, the advertisements for bids, as well as the invitation to bid, indicate that the bids were to be considered and the award was to be made by the Board of Control. In the brief of respondents it is stated that it is admitted by the pleadings that the Board of Control is invested with the power of awarding contracts after the taking of bids for municipal contracts. However, the record fails to disclose the power and duty of the Board of Control pursuant to which it acted incident to the awarding of the instant contract. Since the authority of the Board as such is not attacked, we assume that it acted pursuant to law and had the authority to approve the award of the contract in advance of its execution. Cf. §4403 GC. The advertisement recites in part:

“The City of Cleveland reserves the right by its Board of Control to reject any and all bids. In determining the highest responsible bidder, the Board of Control will consider in addition to the compensation offered, the terms and conditions set forth in the Invitation to Bid. In considering the said bid or proposal, the Board of Control may consent to modifications of such terms, conditions and provisions, and to the addition of other terms, conditions and provisions, provided the same are favorable and beneficial to the City of Cleveland and do not materially or substantially affect the proposed agreement. The proposed agreement shall be prepared by the Director of Law and shall be executed by the Director of Public Properties.”

The above provisions were incorporated in the Invitation to Bid. Section 14 provides in part:

“The City, through the Board of Control, reserves the right to accept or reject any or all bids. In awarding the contract, the City reserves the right to consider all elements entering into the determination of the responsibility and qualifications of the bidder, including prior experience.” Relator relies upon Section 16 of the Invitation to Bid providing that no bid will be awarded to any bidder not having the following qualifications:

“A. The bidder must be actively engaged in the operation of concessions, substantially similar to those contemplated in this proposal, such operations having involved the servicing of single event attendance of 70,000 or more persons. In addition thereto, if bidder is a corporation or a partnership, then at least one executive officer or partner must possess the qualifications herein set forth.

“B. The pecuniary resources and necessary facilities to fulfill the conditions of the contract and specifications herein set forth.

“C. Adequate and responsible personnel in order to make available the services and facilities necessary to render an efficient operation hereunder.”

But assuming the contention of the relator that Berio did not have the required experience be correct, can it be said that upon the record before the trial court that the Director of Public Properties did not enter into the agreement with “the highest responsible bidder?” As above indicated, the limitation in the ordinance with respect to the terms and conditions of the Invitation refers to the terms of the concession agreement and did not limit the authority of the Director to make the agreement containing such terms and conditions with the highest responsible bidder, Berio submitted the next highest bid. Relator’s bid was the lowest bid. It was estimated that the Berio bid would yield annually $60,000.00 more to the City than relator’s bid. Berio was financially responsible and was the highest bidder except for one other bidder, who apparently did not qualify as responsible. There is no contention here that the contract should have been awarded to the highest but not responsible bidder. Since we are not advised as to the duties and responsibility of the Board of Control, except as alleged on page 7 of the answer, we could assume that its members acted merely in an advisory capacity. The resolution of the Board of Control (Ex. 14) affirms and approves -the Berio bid as the highest responsible bid and requests the Director to enter into a contract for the concession.

Upon the state of the record before us, the action of the Board of Control is immaterial. Under the ordinance, the Director could refuse to abide by the request of the Board and enter into the agreement with the highest responsible bidder. Under the evidence, the relator was the lowest bidder and Berio was the next highest bidder.

Relator’s contention would require the Director to determine that notwithstanding Berio was responsible, it did not have experience in handling 70,000 people and therefore that the agreement should have been made with the lowest responsible experienced bidder. Faced with this conflict, the Director exercised his discretion under the ordinance and entered into the contract with the highest responsible bidder. In failing to enter into a contract with the lowest responsible bidder, there was and could be no abuse of discretion. The Director, by mandamus, therefore could not be ordered to award the bid and make the agreement with the relator. The judgment below with respect to the denial of this relief must be affirmed.

But the trial court also found that Berio did not meet the qualifications prescribed by Section 16 of the Invitation to Bid, and decreed that the award made to the Board and the contract thereafter made with Berio be set aside.

Paragraph A of Section 16 of the Invitation to Bid is set forth abpve. The second sentence provides:

“In addition thereto, if the bidder is a corporation or a partnership, then at least one executive officer or partner must possess the qualifications herein set forth.”

Relator contends that if the bidder is a corporation or partnership that in addition to active engagement in the operation of substantially similar concessions, the bidder must also have an executive officer or partner with such qualifications. Respondents assert that the phrase “in addition thereto” merely incorporates an additional proviso in the preceding sentence. The language presents such an ambiguity as to require construction in the light of the terms of the bid as a whole and the circumstances surrounding the preparation .of the Invitation to Bid. The purpose of the Invitation to Bid was to obtain the highest responsible bid. In securing responsible bids, experience was a very important factor. The Board did not want to be bothered by the necessity of considering a number of irresponsible bids. The specifications froze out the grocery clerks. In Section 14 it was provided, in addition to the right to reject any and all bids, that the City reserved the right to consider all elements entering into determining the responsibility and qualifications of the bidder, including prior experience. • This provision was further emphasized in Section 16. In the light of these considerations, the second sentence of Section 16-A should be construed as requiring a corporate bidder to have an executive officer having the same qualifications as those prescribed by the individual bidder.

The evidence with respect to the experience of the vice-president of Berio was conflicting and we are therefore unable to find that the finding on this issue was against the weight of the evidence.

But assuming, without deciding, that the relator as an unsuccessful bidder has such an interest in the award made to Berio as affords it the right to bring the action and obtain the cancellation of the award and contract, does the record disclose an abuse of discretion on the part of the Board of Control and the Director?

The gravamen of relator’s complaint is the failure of the Board to reject the Berio bid. As indicated above, the evidence is in dispute as to Berio’s previous experience. Whether or not the bid should have been rejected was within the sound discretion of the Board of Control. As in the case of the Director, it would have required a finding that notwithstanding Berio was the highest responsible bidder, it did not have an executive officer with experience in handling 70,000 people. Under these circumstances, there was no abuse of discretion on the part of the Board in failing to reject the Berio bid and there was likewise no abuse of discretion in awarding the contract to the highest responsible bidder. As above indicated, since the Director entered into the contract with the highest responsible bidder upon the terms and conditions set forth in the Invitation to Bid, there was no abuse of discretion on his part.

Mandamus will not lie to control discretion unless it be clearly shown that the refusal to perform the desired act is an abuse of discretion. State ex rel. v. Industrial Commission, 144 Oh St 619. Cf. State ex rel. v. Cook, 146 Oh St 348.

The judgment is reversed and final judgment entered for respondents.

CARPENTER, J, CONN, J, concur.


source: Caselaw Access Project

author: By HORNBECK, PJ:

license: Public Domain

text:
    PLUMMER, Plaintiff-Appellant, v. PEOPLES TRANSIT CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2138.
    Decided May 1, 1951.

      Pickrel, Schaeffer & Ebeling, Dayton, William H. Selva, of Counsel, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, Charles S. Bridge, .of Counsel, for defendant-appellee.
   OPINION

By HORNBECK, PJ:

This is an appeal on questions of law from a judgment for the defendant entered on the verdict of a jury.

The action was for personal and property damages to plaintiff caused by a collision between an automobile driven by the plaintiff and a bus operated by a driver for the defendant company. The collision occurred on State Route 48 a short distance from the limits of the City of Dayton. The plaintiff was driving south on Route 48 and defendant’s driver was moving into the east lane of the west half of said highway coming out of a bus loop to the east of the highway.

One of the specifications of negligence of the petition was that defendant’s driv'er did not yield the right of way to plaintiff. The answer was a general denial and an allegation that the collision was caused by the sole negligence of the plaintiff in driving his automobile at the time and place of the collision at a rate of speed greater than was reasonable and proper, to-wit: in excess of sixty miles per hour.

The verdict of the jury was for the defendant “according to special instruction No. 6,” which is set out hereafter.

The first assignment is that the Court erred in giving defendant’s special charges Nos. 4, 6 and 7.

No. 4. “I charge you, members of the jury, that the operator of the defendant’s trolley bus, as he operated the trolley bus from the loop onto North Main Street, had the right to assume, until he learned to the contrary, that any vehicle being operated southwardly on that street was being operated at a lawful rate of speed.”

The charge is unobjectionable. Heidle v. Baldwin, 118 Oh St 375, 1 syl.; Morris v. Bloomgren, 127 Oh St 147, 1, 3 and 4 syl.; Swoboda v. Brown, 129 Oh St 513.

No. 6. “If you find, members of the jury, that the collision between the plaintiff’s automobile and the defendant’s trolley bus was proximately caused by the combined negligence of the defendant’s trolley bus and the plaintiff, then the plaintiff can not recover against the defendant in this action, and the verdict in that event must be for the defendant.”

It is claimed that this charge is erroneous in that it assumes the negligence of the plaintiff. We think not. The jury could not find combined negligence until first it had found negligence of both parties and this right is reserved to the jury by the plain intendment of the instruction.

It is true, as we hereafter point out, that the Court improperly defined negligence as to the plaintiff, but that does not affect the correctness of this instruction.

No. 7. “If you find, members of the jury, that the plaintiff in the exercise of ordinary care could have seen the defendant’s trolley bus moving into the highway in time in the exercise of ordinary care to have avoided colliding with it, and yet failed to do so, and you find such failure on his part was the proximate cause or one of the proximate causes of the collision, then the plaintiff can not recover in this action, regardless of what the defendant did or failed to do.”

The charge did not recognize the prerequisite conditions upon which the plaintiff would be required to exercise ordinary care as found in the 5th syllabus of Morris v. Bloomgren, supra. They are that, if the driver lawfully approaching from the right, just as he is approaching or entering the intersection, discovers that the driver approaching from the left is not yielding the right of way and has thereby placed himself in a perilous situation, it becomes the duty of the former to use ordinary care not to injure the latter after becoming aware of his perilous situation. Under the charge as given, the degree of care enjoined upon the plaintiff was ordinary care not only when and if he discovered the defendant’s driver to be in a position of peril, but at all times even as he approached and before he entered the path of plaintiff’s car. This permitted the jury to determine whether or not plaintiff had the right to assume, in the exercise of ordinary care, that defendant’s driver would yield the right of way, whereas he had the positive right to assume that defendant’s driver would yield that right until he knew otherwise. The charge is in contradiction of the prohibition in the second syllabus of Morris v. Bloomgren, that the driver entitled to the preference shall not be put upon an equal plane with the other driver and relegated to the rule of care existing at common law. The only qualification to the preferential status of the motorist who has the right of way at an intersection is that he approach the intersection in a lawful manner. He might be observing that obligation and yet, by the special charge, be found by the jury to have failed to exercise ordinary care. The 5th syllabus of Morris v. Bloomgren pronounces a rule much like the doctrine of last chance and before it can be given application all of its essential elements must apnear.

The second assignment of error is directed to the refusal of the trial judge to give two special charges before argument requested by plaintiff.

Without extended comment we hold that they were properly refused. The first, because upon plaintiff’s theory of the case, as pleaded and developed, it did not present an issue as to any emergency with which he was confronted. The second, because it did not include the requisite that the negligence of defendant, if any, must be found to be a proximate cause of damage to the plaintiff.

The third error assigned is directed to the general charge of the Court and particularly:

(a)

“If the defendant, Peoples Transit Company, and the plaintiff, Marvin J. Plummer, owner and driver of the automobile, at the time and place were engaged in the lawful use of the highway, each owed the duty of using ordinary care for his own safety and the safety of the other. Both the driver of the automobile and the bus driver had an equal right to the use of the highway at said time and place of the collision.”

And later:

(b)

“In the exercise of his equal rights on the road, the operator of an automobile, in the exercise of ordinary care, has a right to cross an intersection, even if he observes a bus approaching, provided there is a reasonable opportunity for him to cross, in the exercise of ordinary care, without obstructing the passage of the bus unnecessarily; and provided further that the operator of the automobile does not undertake to cross the intersection in front of an approaching bus in such close proximity to the bus at the time he attempts to cross, that the bus operator if running at an ordinary and lawful speed, may not be able, by the exercise of ordinary care, to avoid a collision with the automobile.”

(a) is incorrect in that part which is underscored.

(b) is incorrect in that it assumes in the first part thereof that both parties had equal rights at the intersection and in the latter part accords the right of the automobilist, the plaintiff, to cross the intersection only if, in the exercise of ordinary care, he can do so without obstructing the passage of the bus unnecessarily. This is a denial of the preferential right of way at the intersection to the plaintiff though he may be proceeding in a lawful manner as he approaches it. Its effect is to give the preference of right of way at the intersection to the defendant. Morris v. Bloomgren, supra; Seekatz v. Sparks, 24 Abs 472.

Another part of the general charge to which objection is urged is;

“I say to you in this respect, that if the plaintiff herein violated the provisions of §6307-21 GC, and drove his automobile in excess of fifty miles per hour, then such a violation on the part of plaintiff would be prima facie negligence.”

The statute reads: “It shall be prima facie unlawful for any person to exceed any of the speed limitations in this or in other sections of this act.” The charge conforms to the language of the statute. The speed “in excess of fifty miles per hour” at the place of the collision was, by the section, prima facie unlawful and, therefore, prima facie negligent.

The court later said:

“If you find that the plaintiff was operating his automobile at a speed that was greater than was reasonable and proper at the time and place, having due regard for the traffic and conditions of the weather at the time, then I charge you he is guilty of violating the General Code of the State of Ohio, and is guilty of negligence as a matter of law.”

That part of the charge reading “having due regard for the traffic and conditions of the weather at the time” does not include the other factors which the jury shall consider, as set out in the statute, viz: “surface and width of the highway and of any other conditions then existing.” It is safe procedure to embody all of the terms of the statute.

Our Supreme Court has said that a violation of the “assured clear distance ahead” provision of §12603 GC, now §6307-21 GC, is negligence per se. Skinner v. Penna. R. R. Co., 127 Oh St 69; Gumley, Admstr. v. Cowan, 129 Oh St 36; Kormos v. Cleveland Retail Credit Men’s Co., 131 Oh St 471. Swoboda v. Brown, 129 Oh St 513, holds that:

“Though the violation of the general speed provisions of §12603 GC, may not properly be denominated negligence per se, an instruction that such violation constitutes negligence or failure to exercise ordinary care is not erroneous.”

The charge of the trial judge in the instant case is substantially the same as the charge in Swoboda v. Brown, suprá, and would not support a reversal of the judgment. See Sweeney v. Schneider, 73 Oh Ap 157. The charge which we disapproved in Palmer v. Roof, 84 Oh Ap 120, is somewhat different from either of the charges which we have just considered.

We find that the giving of defendant’s special charge No. 7 before argument, and the general charge in the particulars heretofore discussed was prejudicially erroneous to the plaintiff.

The judgment will be reversed and cause remanded for a new trial.

WISEMAN and MILLER, JJ, concur.


author: By THE COURT:

text:
    PASTERNAK, Plaintiff-Appellee, v. JONTZEN, Defendant-Appellant, THRIFT INVESTMENT COMPANY et al, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21912.
    Decided January 16, 1951.
    Emanuel Gynn, Cleveland, for plaintiff-appellee.
    Jack Heil, Beach & Warner, Frank T. Cullitan, County Pros., Cleveland, for defendant-appellant and defendantsappellees.
    (GUERNSEY, J, MIDDLETON, J, of the 3rd District sitting by designation with SKEEL, PJ, of the 8th District.)
   OPINION

By THE COURT:

In rendering the judgment it has rendered in this action, the Court approves and adopts the reasoning set forth in the opinion of Stanley L. Orr, Judge of the Court of Common Pleas, filed in said cause in said court.

This Court gives priority to the lien of the State for taxes accruing upon said Parcel No. one since the date of the invalid tax sale of said parcel, over the lien of the defendant, Lawrence G. Jontzen, for the reason that under the laws of Ohio the lien of the State for taxes which may be levied on real estate is superior to all other liens thereon and the State is not deemed to waive such lien unless the State, through its Legislature, does so in plain, unequivocal language, and we find no provision of any statute of the State which may be considered or construed as a waiver by the State of its first lien for taxes upon real estate accruing subsequent to the sale of such real estate for taxes.

Under the provisions of §5755 GC, where land is sold for taxes irrespective of the amount of taxes, assessments, penalties and interest due upon it, such sale shall convey the title to said tract or parcel of land divested of all liability for any arrearages for taxes, assessments, penalties and interest which remain after applying the amount thereon for which it is sold.

These provisions are solely for the benefit of the purchaser and protection of the title acquired by him at such sale.

Where the sale is subsequently declared invalid, the purchaser under the provisions of §§5766 and 5767 GC, in lieu of the title to the real estate is vested with a lien upon the real estate purchased by him at such invalid sale, for the amount paid by him for such premises at such sale.

The sale being invalid, the amount of the taxes, assessments, penalties and interest due upon the real estate, over and above the purchase price at said invalid sale, are not abated but remain a valid claim and lien upon said real estate, subject only to the prior lien of the purchaser for the amount paid by him for said real estate at said invalid tax sale.

We have accordingly so prescribed in the judgment of this court. Order see journal.

SKEEL, PJ, GUERNSEY, J, MIDDLETON, J, concur.


author: By THE COURT:.

text:
    BRAWNER, Plaintiff-Appellee, v. WELFARE FINANCE CORP. et, Defendant-Appellee, and MIDWESTERN INDEMNITY CO., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2069.
    Decided November 30, 1950.
    Scharrer, Scharrer & Hanaghan, Dayton, for plaintiff-appellee.
    Shaman, Winer & Shulman, Dayton, for Welfare Finance Corp., defendant-appellee.

      Southard & Rothberg, Dayton, for James H. Dodds, defendant-appellee.
    Harshman & Young, Dayton, for Midwestern Indemnity Co., defendant-appellant.
   OPINION

By THE COURT:.

This is an appeal on questions of law from a judgment on behalf of the plaintiff against the defendant-appellant for $858.00 with interest and costs.

Ten errors are assigned, which we set forth hereafter as we discuss them.

To appreciate and give application to the errors assigned it will be necessary to state the pleadings and facts developed at considerable length.

The action was instituted in the Municipal Court of the City of Dayton by the plaintiff against defendant, Welfare Finance Corporation, and defendant, James H. Dodds.

The statement of claim recited that plaintiff, on or about September 3, 1948, being the owner of a 1941 Buick automobile, made application to the Welfare Finance Corporation for a $400.00 loan which was granted upon the condition that the plaintiff place fire, theft, and $50.00 deductible collision insurance on the automobile in addition to note and chattel mortgage; that the corporation agreed that it would -place the insurance, obtain the policy and pursuant to that agreement took an application of the plaintiff for insurance, and retained $55.00 to pay the premium thereon; that the policy to be issued was for one year from and after September 3, 1948. Plaintiff further averred that defendant, Dodds, “although receiving said application for insurance, and receiving and accepting said premium for insurance, never insured said automobile with any insurance company for fire, theft and $50.00 deductible collision, and further states that the defendant, the Welfare Finance Corporation, never obtained said policy of insurance, and failed and neglected to inform plaintiff that it had never obtained such insurance, or policy evidencing such insurance, according to said agreement.”

Plaintiff avers that on January 28, 1949, the automobile was damaged by fire in the amount of $826.00 for which, with certain expenses, plaintiff prayed damages. Defendant, Dodds, answered admitting the receipt of $55.00 from defendant, Welfare Finance Corporation, for a policy of insurance on plaintiff’s automobile but denied that he failed to insure said automobile and avers that at the time of the alleged fire he had insured said automobile. The defendant, Welfare Finance Corporation, admits the granting of the loan; denies that it agreed to place the insurance or obtain such policy of insurance described in plaintiff’s statement of claim, or any insurance; admits that it took plaintiff’s application for insurance together with $55.00 for premium, should plaintiff be insurable, and avers that it sent its check to Dodds and generally denies other averments of the statement of claim.

The cause came on for trial to a Municipal judge on the 25th day of May, 1949, testimony was taken on that day and on May 26, 1949. The hearing was continued and renewed on June 29 and on September 14, 1949. Between the second and third hearings, on the 3rd of June, 1949, defendant, Welfare Finance Corporation, moved the court for an order making The Midwestern Indemnity Co. a party defendant. The ground for this motion was that “the evidence so far introduced indicates that The Midwestern Indemnity Company may have had coverage on the automobile of the plaintiff at the time the alleged fire occurred and in order to fully adjudicate this matter within this action, The Midwestern Indemnity Co. should be made a party defendant.” On June 13th the court sustained the motion and at the succeeding hearings counsel for the indemnity company appeared and represented said company in the trial of the cause. On the 15th of June, prior to the resumption of the trial on the 29th of June; 1949, the indemnity company moved the court for an order requiring the plaintiff “to elect as to which defendant he wishes to proceed against.” This motion was overruled on June 27th and the cause proceeded. At the conclusion of plaintiff’s case motion of defendant, Midwestern Indemnity Company, to be dismissed was overruled. A like motion on behalf of defendant, Welfare Finance Corporation, was sustained. Plaintiff noted his exception to the sustaining of the motion to dismiss the Welfare Finance Corporation and the trial proceeded.

The evidence developed the facts respecting the claim of the plaintiff, the defense of Dodds to the effect that on the 27th of January, 1948, one day prior to the fire in which plaintiff’s automobile was damaged, he had sent the application of the plaintiff to the defendant, insurance company for coverage for loss by fire and other extended coverage. The claim of the insurance company was that by the terms of its contract with Dodds, its agent, it was not required to date policies written upon applications sent in by Dodds for the finance company as of the time when the application was made but as of the date when received at the office of its general agent, and that it was received on January 31, 1948, and the policy issued of that date.

Dodds testified that on September 3, 1948, he had the authority and could have secured a policy on the automobile of plaintiff, as applied for, but that he had failed to send in the application, withholding it as against the possibility that he might later be authorized to apply for further coverage. The insurance company denied that it would have written a form of policy as requested in the original application. It should be noted, however, that this issue was not drawn between the plaintiff and the insurance company. Upon the admission of Dodds it appeared conclusively that he had breached his contract in failing to forward the first application and to secure the insurance as he had promised to do. Had he observed his contract plaintiff would have been insured at the time of the fire by a policy effective for one year on and after September 3, 1948. The plaintiff had a loss by collision in December, 1948, which Dodds personally adjusted. But defendant, Dodds, claims that the plaintiff was insured at the time his automobile burned upon a second application which he says he completed and sent to the general agency on the 27th of January, 1949. On this claim there was an issue on the pleadings whether he had completed this application before the fire.

We are required to take the pleadings as we find them. At no time has there been a motion to amend any pleading in any particular whatever. The plaintiff’s cause of action was against the defendant, Dodds, and the defendant, Welfare Finance Corporation. It is our opinion that the action was for breach of contract and that they were properly joined and upon plaintiff’s testimony a judgment could have been entered against either or against them jointly. But plaintiff has prosecuted no appeal from their dismissal.

The indemnity company which was made a party upon the application of the finance company, appearing only for the purpose of the motion, objected to being made a party defendant. Having saved its exception to the action of the court, its participation and defense in the trial, after such exception, did not waive its objection to the action of the court. The Ohio Electric Ry. Co. v. The United States Express Co., 105 Oh St 331. We are not unmindful of the holdings that where parties try their case upon a supposed issue which is not made by the pleadings, and the case is fairly tried and decided, it is too late for the losing party to urge the failure of issue after judgment. Bacon v. Daniels, 37 Oh St 279; Electric Mfg. Co. v. Shelley, 32 Oh Ap 379. But this case does not come within this rule. Plaintiff at no time amended his statement of claim, sought to bring in the insurance company as party defendant or prayed for judgment against it. Had he done so, manifestly it would have been upon a new and different cause of action than that which he had pleaded in his statement of claim. The cause of action sued upon was for breach of a contract to secure insurance; the one upon which judgment was rendered was to enforce the terms of a contract of insurance. A judgment rendered for a new cause of action, not embodied in the original pleading, is wholly void in the absence of a new appearance or new process. Durabilt Steel Locker Co. v. Berger Mfg. Co., 21 Fed. (2d) 139. Judge Mauck, in Scott v. Interlock Cord Tire & Belt Co., 1 Abs 752, said:

“the authorities are uniform that a case not pleaded is no case at all.”

To like effect see case of same title, 1 Abs 423, citing Gidding v. Barney, 31 Oh St 80; Southward v. Jamison, et al., 66 Oh St 290. Also Licht v. Woertz, 32 Oh Ap 111.

Although the insurance company was brought into the case upon the motion of the finance corporation upon the theory that it was necessary to a final determination of the questions presented, neither it, nor Dodds, nor the insurance company set up any pleading invoking any action by the court. No service was had upon the insurance company and there was nothing in any pleading or prayer which would support such service.

The trial judge in reaching the judgment held that Dodds, who had been licensed on January 7, 1949, as an agent of the insurance company, was its agent on January 27, 1949, and acting within his apparent scope of authority on that date sent the second application to the company and it having issued the policy could not be heard to say that it was not bound because of the provisions of §9586 GC. This principle is well established and could have been, but was not, invoked by the plaintiff against the insurance company but it was sought to be raised by Dodds. As between Dodds, the agent, and his principal, the insurance company, it had the right to fix the time from which it would be bound by policies issued on applications sent in by him. If he exceeded the authority delegated to him he is personally responsible to those who, in ignorance of his lack of authority, deal with him to their damage. Trust Co. v. Floyd, et al., 47 Oh St 525; Walton v. Hudson, 82 Oh Ap 330; Note to Elam v. Smithdale Realty and Insurance Co., (N. C.) 18 A. L. R. 1214. Neither of these principles will support an affirmative finding and judgment against the insurance company on behalf of the plaintiff in the face of the statement of claim that no policy was in effect on the date of the fire and in which there is no prayer for judgment against the company.

It is urged by the insurance company that Dodds had been definitely informed that policies written on his applications would be dated at the time when received at the office of the general agent. There is little room for doubt of the soundness of this contention. The company also insisted that Dodds, at the time that the original application was filed with him on September 3, 1948, was not in the status of an agent of the company. This position is not so well supported by the record. A letter of March 26, 1948 from the general agent to Dodds is offered to support this latter contention. It may be construed as a delegation of Dodds as an agent of the company and at that time the agency expressed an obligation, if insurance issued, to date all policies as of the date of the application. But Dodds can have no aid or comfort from this letter because the original application was not sent in to the general agency.

We come then to consider the specific errors assigned.

Number One. The court erred in sustaining a motion to add appellant as a party defendant after the trial of the case had been started.

We believe that the court erred in this respect because upon the issues joined appellant was not a proper or necessary party. The issues were whether or not the defendants, the finance corporation and Dodds, either or both, failed to carry out their contract to secure the insurance for the plaintiff. Dodds could have sustained his defense on proof that the automobile of plaintiff was insured prior to the fire. But such proof must have been made in the light of his actual authority as agent of the insurance company. Our ruling on this assignment of error completely disposes of the appeal. However, because we may be incorrect in our conclusion and because we are required to pass on all errors assigned we will do so.

The second and fourth assignments may be considered together. They are:

The court erred in overruling the motions made by appellant to require the plaintiff to elect as to which defendant he would proceed against.

One of these motions was made at the time that the indemnity company was made a party defendant, the other at the time plaintiff rested. The court did not err in either instance because there was but the one cause of action in plaintiff’s statement of claim as to which there was no basis to require an election. The plaintiff • did not at any time take inconsistent positions on his claim. 15 O. Jur. 250.

Number Three. The court erred in rejecting plaintiff’s exhibit “L” when it was offered in evidence.

This exhibit was a letter written to the indemnity company by Dodds in the matter of two policies, neither of which was that of plaintiff’s. This letter was written on the 25th of January 1949, succeeding a letter of January 24, 1949, from the company to Dodds in which the general agent of the company had said to Dodds that in the future policies in which Welfare Finance Corporation was interested would be issued as of the date that the application was received at the office of the general agent of the company. The part of the subject matter of the letter sought to be offered tended to disclose that Dodds understood the purpose of the company respecting the date when policies which he had sent in for the finance corporation should be issued. These statements were in the nature of admissions against interest and were admissible against Dodds upon that theory.

Number Five. The court erred in sustaining the motion of defendant Welfare Finance Corp. to be dismissed at the close of plaintiff’s case.

Upon the state of the pleadings and the record, we hold that this assignment is not well made because it may not be urged by appellant. If the insurance company had the right to raise this question it has much merit.

Number Six. The court erred in overruling appellant’s motion to be dismissed at the close of the trial.

This motion should have been sustained for the reasons set forth in the discussion as to the first error assigned.

Number Seven. The court erred in its Special Finding of Fact and Law in concluding that James H. Dodds was a duly authorized agent for appellant at the time he accepted the original application for insurance from plaintiff, Brawner.

The court did not err in this special finding. It was made upon the request of appellant and was germane to the issue drawn by the plaintiff and defendant, Dodds.

Number Eight. The court erred in its Special Finding of ■Fact and Law in concluding that there was a policy of fire insurance in effect on January 28, 1949 upon which date plaintiff’s automobile was destroyed by fire.

This special finding may not be binding upon the appellant because it was not an issue between it and plaintiff. It cannot be supported under the factual development in behalf of Dodds upon the issue joined between him and the plaintiff because against the manifest weight of the evidence. The authority of the agent, Dodds, was clearly limited as between himself and the insurance company as to the date when policies would be issued by the company upon business in which the finance corporation was interested. This finding of fact and law could not be binding as between the plaintiff and the insurance company because no such issue was joined between them.

Number Nine. The court erred in failing to find defendant, James H. Dodds, liable to plaintiff, Robert Brawner.

We do not find this assignment well made for the sole reason that it cannot be urged by the appellant. The plaintiff-appellee noted no objection or exception to the action of the trial judge in refusing to enter judgment for him against defendant, Brawner, and no appeal or cross-appeal has been perfected by the plaintiff. He, and not the appellant, would be the party who would be entitled to urge this assignment.

We say to this assignment, as we did to No. 5, that if the insurance company has the right to urge it on this appeal it presents a very serious question. If counsel for the insurance company is convinced that it has the right to urge these errors and has authorities to support its contention, we would waive our rule as to application for rehearing and give the matter further attention if such application is filed.

Number Ten. The judgment is contrary to law.

For the reasons which we have heretofore stated the assignment is well made.

The judgment of this court will be that the defendant-appellant, Midwestern Indemnity Co., be dismissed as a party defendant in the original action in this cause and the cause will be remanded.

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


author: By HORNBECK, PJ.

text:
    STATE, ex rel. NEWMAN, Petitioner, v. LOWERY et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4505.
    Decided June 21, 1951.

      Robert E. Holmes, Columbus, for petitioner.
    Hon. C. William O’Neill, Atty. Geni., Max H. Dennis, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By HORNBECK, PJ.

This is an action seeking a writ commanding the Commission to reinstate its order granting a parole to the petitioner from the Ohio State Penitentiary.

The order which the action seeks to have enforced is of date March 9, 1950, found in the minutes of the defendant Commission, — Continued cases,

“63515 — Franklin County Bank Robbery Parole on or after April 20, 1950, when arranged by Bureau of Probation and Parole.”

This order was supported by two members of the Commission. Thereafter, of date April 10, 1950, these minutes appear in the record of the Commission:

“In re — James Newman No. 63515 O. P. This inmate was received at the Ohio Penitentiary from Franklin County, March 18, 1931, to serve a life sentence for bank robbery.

“According to law, this case became eligible for hearing and at the March, 1950 meeting, the Commission voted a parole effective on or after April 20, 1950, when arranged by the Bureau of Probation and Parole.

“This case was given further consideration by the Pardon and Parole Commission, and the Commission this day, April 10, 1950, rescinded the action taken at the March, 1950 meeting and voted the following action:

“ ‘Continue to March, 1955.’ ”

This order was supported by two members of the Commission.

It is the claim of petitioner that the order of April 10, 1950, rescinded the action of the Commission of March 9, 1950, was unauthorized, a denial of due process of law to the petitioner and if upon any authority at all, an abuse of the discretion of the Commission.

We approach the question in this case without any precedent to shape our determination.

We are not impressed with the constitutional question Urged nor the invalidity of the order because not authorized.

The petitioner, in a very thorough and well written brief approaches the subject from two aspects: (1) That the order of parole having been formally entered could be revoked only for good cause shown. Citations are offered from 54 A. L. R. 1471; 39 Am. Jur. 579, Section 95; MacAboy v. Klecks, 22 F. Supp. 960, Attorney General’s Op. No. 912, 1949, and §2209-20 GC.

These citations all relate to a parole which has become effective and the prisoner has been released from the institution in which he had been incarcerated. The definition of the word “parole,” paragraph 8, §2209 GC, is that:

“The word ‘parole’ shall mean the release from confinement in any state penal or reformatory institution, by the Pardon and Parole Commission upon such terms and conditions as the Commission may prescribe.”

Manifestly here no parole had become effective although an order had been made and the conditions fixed under which it would issue. There was no revocation of parole. We find no merit in the first contention.

The second claim is tha.t the Commission abused its discretion in making the order of rescission without formal hearing or opportunity to the petitioner to be heard, and without sufficient reason to support it. It is contended that the act of the Commission was, in probability, brought about by articles in various newspapers throughout the state, and these are before us. An examination of these articles is convincing that those which appeared between the first order and the second were insufficient in subject matter to have influenced the issuance of the second order. In no one of them is there any material fact which was not available to the Commission when it made its first order. The only new matter was to the effect that Governor Lausche meant to look into the action of the Commission, but at the same time he expressed no opinion and said in substance that he was not informed in the matter. So that, it is inferable that the Commission came to a different conclusion upon that which was before it or had further information not appearing in the record, which actuated the order of rescission.

We are treating here of the power of the Commission and not of the propriety either in failing to extend the right of a hearing to the petitioner or to recite the subject matter or reasons for the act of the Commission.

The power and authority of the Commission to grant or revoke the parole must be- found in the specific language of, and -the intendment to be drawn from, §2209-8 GC, which, in sú far as pertinent, reads:

“The Commission shall have the power and authority to exercise its functions and duties * * * in relation to the parole of a prisoner eligible for parole, upon the initiative of the head of the institution wherein the prisoner is confined, or upon its own initiative. * * * The Commission shall have continuing power and authority to investigate and examine, or to cause the investigation and examination of, prisoners confined in state penal or reformatory institutions concerning their conduct therein, their mental and moral qualities and characteristics, their knowledge of a trade or profession, their former means of livelihood, their family relationships and any other matters affecting their fitness to be at liberty without being a threat to society.

“The Commission may * ■* *order the parole of any prisoner, if in its judgment there is reasonable ground to believe that if * * * the prisoner be paroled he will be and remain at liberty without violating the law, and that the granting of such * * * parole is consistent with the welfare and security of society.” (Emphasis ours.)

It will be observed that the Commission has continuing-jurisdiction of the matters entrusted to it and that the elements in that part of the section which we have underscored are to be taken into consideration in acting upon a parole.

Inasmuch as there is no requirement that the Commission specifically set forth in its orders the reason for its action we must indulge the presumption that when it made the order of rescission it had subject matter which supported some ground of unfitness of the petitioner to be released.

The presumption of legality and regularity of the official acts of the Commission in the performance of its duties must be indulged, (17 O. Jur. 129) and thus, unless it had no power to make the second order, it must be presumed that it was validly made. The controlling statute is not specific as to the authority of the Commission to rescind the order formerly made and we must resort to a reasonable construction of its meaning. It is recognized that Courts have the power during term, even on their own motion, to set aside and vacate an order theretofore made. By analogy, it would appear that when the Commission has made an order granting a parole effective at a future date, it would have in its broad discretionary power the right to enter an order of rescission provided that it become effective prior to the actual release of the prisoner.

It will be noted that the order of parole was to be effective on or after April 20, 1950, when arranged by the Bureau of Probation and Parole. Manifestly, the time when the parole would become effective was after proper arrangements had been made by the Bureau of Probation and Parole. We, however, do not ground our judgment upon this fact because if the position of the petitioner could be maintained in this Court he would be entitled to some affirmative order in his behalf.

Although the matter determined is one of first impression, it is our judgment that the Commission upon the record had the discretionary power to make the order of April 10, 1950.

The writ will be denied.

WISEMAN and MILLER, JJ, concur.


author: Per CURIAM: MATTHEWS, J,

text:
    SCOTT, Admr., Plaintiff-Appellee, v. MARSHALL, Defendant-Appellant.
    Ohio Appeals, First District, Clermont County.
    No. 200.
    Decided May 5, 1951.

      John R. Gehrig, Nichols, Speidel & Nichols, Cincinnati, for plaintiff-appellee.
    Ely, White & Davidson, Batavia, for defendant-appellant.
   OPINION

Per CURIAM:

This law appeal is from a judgment entered on the verdict of a jury for the plaintiff in a wrongful death action, wherein plaintiff’s decedent, a little girl nine years of age, rode her bicycle out of the driveway of her home onto State Route 131 in Clermont County, directly in the path of an automobile being driven by defendant, and in the ensuing collision received the injuries resulting in her death a matter of hours thereafter.

One of the errors assigned is that the court charged on the assured clear distance, when it is claimed the evidence clearly excluded application of that rule from the case.

Starkly stated, the facts, accepting plaintiff’s version, show this to be a case where the little girl rode her bicycle out of the driveway from behind a bush, planted in the right angle created by the driveway and the highway, while looking backward over her shoulder, onto the highway at the point of impact shown to be by plaintiff’s plat at a point directly in the center line of the driveway, about one foot to eighteen inches onto the traveled portion of the highway, and directly in defendant’s right hand lane of travel, in which he was proceeding at a speed prima facie lawful.

It is therefore apparent that the decedent’s sudden entrance into such lane of travel cut down the defendant’s assured clear distance ahead and there was no evidence tending to show that plaintiff’s decedent was within such lane of travel a sufficient time or a sufficient distance ahead to make it possible for defendant to avoid the collision.

On the authority of Erdman v. Mestrovich, 155 Oh St, 85, published in Ohio Bar of 3/19/51, subsequent to oral argument of this case, it appears from the state of the evidence here, it was error to give the charge predicated on the assured clear distance ahead rule, requiring a reversal of this judgment on that ground. See, also: Smiley v. Arrow Spring Bed Co., 138 Oh St 81, 33 N. E. (21) 3, 133 A. L. R. 960.

Error is also assigned to the refusal of the trial court to charge on the question of contributory negligence, at the request of the defendant. Plaintiff’s special charge No. 6 had to do with the degree of care required of a child such as plaintiff’s decedent.

The request for this charge by the plaintiff would seem to recognize on the part of the plaintiff the propriety of a charge on contributory negligence of a child such as plaintiff’s decedent.

The answer denies any negligence at all on the part of the defendant, but no issue of contributory negligence is made by the pleadings. Nevertheless, it is well settled that where the question of contributory negligence arises from the evidence, it is the duty of the court to charge thereon. 29 O. Jur., Section 234, at page 785.

As to contributory negligence of children, it is stated in 29 O. Jur., Section 203, page 739:

“In considering the contributory negligence of children upon the trial of a negligence action, two questions are involved. There is first the question whether the child is capable of contributory negligence. As shown above, a child may be of such tender years as to be incapable of contributory negligence. The question whether the child is capable of contributory negligence is ordinarily a question for the jury.”

“When a child is of such years that its ability or inability to exercise care for its safety admits of no doubt, the court will decide that question as a matter of law.”

Such, this case appears to be.

“It is the duty of a jury, in determining whether or not an infant was guilty of contributory negligence, to first determine the standard of conduct to which the child is to be held, by giving due consideration to its age, mental and physical development, and environment, and then, having fixed this standard, to measure that which the child has actually done by this standard, and determine whether or not the child has come up to it, or has failed.”

This Court said in Misrach v. Epperson, 32 Oh Ap, 451, at page 458:

“While it is difficult to see how contributory negligence could be attributable to the defendant in error, a boy eight years of age, still it was unquestionably a question to go to the jury under proper instructions, which were given. The plaintiff in error from her own testimony left the impression that this was a ‘dart-out’ case, and certainly a proper instruction on contributory negligence was called for, even though not raised by the pleadings.”

In 38 Am. Jur., Section 204, at page 884, it is stated: “Generally speaking, children are required to exercise ordinary care to avoid injuries to themselves.”

“The standard by which to measure the conduct of a child, as regards the question of contributory negligence, is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience, under the same or similar circumstances.”

In wrongful death actions, 29 O. Jur., Section 84, page 524, states the rule to be:

“In actions for death wrongfully caused by the negligence of the defendant, the general rule is that the negligence of the decedent proximately contributing to the injury resulting in death bars recovery in favor of the beneficiaries for the loss they have sustained thereby. Contributory negligence of the administrator or executor, in whose name the action for wrongful death is brought, is not a defense, because he is merely a nominal party, and has no interest in the damages to be recovered. However, the personal representative of the deceased is frequently one of the beneficiaries for whom the action is brought, so that the right of action may be affected by his negligence. There can be no doubt that the contributory negligence of the sole beneficiary, or of all the beneficiaries, for whose benefit an action for wrongful death is brought, constitutes a complete defense thereto. The rule now is that contributory negligence is available as a defense against such beneficiaries as by their negligence contributed to the death of the deceased, but not as against those who were not guilty of such negligence.

“The rule in Ohio is that in an action brought by a parent for the loss of the services of his child, by reason of its wrongful or negligent injury by another, the contributory negligence of the parent will defeat his recovery.”

In 38 Am. Jur., page 893, the duty of a parent is stated to be:

“They owe the duty to care for their children who are so young and immature that they cannot care for themselves, and in so doing are bound to exercise such degree of care and prudence to promote their safety, as under all the circumstances, is reasonable and proportionate to the age and intelligence of the children, and to the known dangers, or dangers which might be known by the exercise of due care. The unexplained presence of a child of tender years in a place of danger has been held to indicate negligence on the part of its parents, although such a showing of negligence is ordinarily deemed prima facie rather than conclusive. It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against known hazards incident to their presence on a street or other public way, and to permit or suffer such a child to go or be upon a highway or street unattended may constitute negligence on the part of the parent or custodian, although it does not do so under all circumstances. The question is ordinarily one of fact to be determined in the light of various circumstances, such as the age, capacity, and physical condition of the child, and the amount and character of traffic on the highway or street.”

The evidence in the instant case is that both parents were absent from the house at the time of this accident, leaving the decedent without parental surveillance and with access to her bicycle, which she was accustomed to riding out into the highway and beyond the bush forming an obstruction to the view at the entrance thereof, and which was removed shortly after the accident.

It, therefore, appears that a charge on contributory negligence, as applied to the duty of the parents, beneficiaries in this case, should be included.

Having stated the grounds for reversal, noted above, we next consider whether or not there is substantial evidence of any negligence on the part of the defendant requiring this court to remand the case for retrial, or whether it becomes the duty of this court to enter final judgment for the defendant. Decision of this question requires analysis of the pleadings and the evidence.

The specifications of negligence in the amended petition are:

“1. While driving said automobile Frank Marshall failed to keep a proper lookout.

“2. Frank Marshall failed to give warning to plaintiff’s decedent of his approach.

“3. Frank Marshall failed to keep said automobile under control, making it impossible for him to stop within the assured clear distance ahead.

“4. Frank Marshall drove at a speed of over forty-five miles an hour, which speed was unreasonable and improper, having due regard for the traffic, surface and width of said highway and for the other conditions then existing.

“5. Frank Marshall failed to operate said automobile with due regard for the safety and rights of others, particularly those of said Phyllis Ann Scott, plaintiff’s decedent.”

No. 3 has been heretofore disposed of and the court finds no difficulty in eliminating No. 4, for complete failure of proof thereon.

We analyze the evidence with reference to Nos. 1, 2, and 5, although we fail to see circumstances under which any duty to warn (Specification No. 2) is either pleaded or proved.

One Jones, plaintiff’s eye witness, from a point on the opposite side of the highway, approximately 200 yards distant, testified on direct examination:

“Q. * * * All right, now, tell the jury what you saw.

A. Well, I heard the sound of a motor and I looked up.

A. to see if it was the Jeep, but it was a LaSalle. I don’t know just what model it was. I saw it coming down the road and about that time I saw the bicycle come out about the same time—

A. Then the bumper of the car struck the bicycle; run into the front wheel. The girl seemed to come in and hug the car like as it come on past where it hit her. The fellow driving the car went to the culvert, slowed down, put it in second gear, and proceeded on where I was standing.

Q. What happened?

A. I ran out and hollered at him.

Q. What did you say?

A. I said, ‘Do you know what you have done?’

Q. Then what did you do?

A. He proceeded on roughly 100 feet and stopped.

Q. Did you run over to him?

Q. And what did you see in reference to this man?

A. Both hands were on the top of the steering wheel and shaking; a dazed condition.

Q. How about his facial condition?

A. He didn’t have any.

Q. Were you talking to him?

A. Yes.

Q. Did he answer you?

A. No, he didn’t.

Q. What was he doing?

A. Just looking straight ahead.

Q. What was his expression in reference to his eyes?

A. Well, he was just staring off into space, as far as I know, looking at some object up the road.

Q. Now, you see here on this blackboard that the position in which I have drawn these objects indicates that the front, or front wheel, of the bicycle is in front of the right portion of the bumper, front bumper, of the automobile, and I’ll ask you, at the moment of impact, is that a correct representation of what you saw?

A. Yes, Sir.

Q. And I’ll ask you further, Mr. Jones, this scene that I have drawn on the right, namely, the moment of impact as you reported took place where with reference to the driveway entrance into State Route 131? Did it take place immediately in front of the driveway?

A. Yes.

Q. And was this point of impact, as I have indicated by placing an ‘X’ right where the front, where this car touches the front wheel of the bicycle, was that point of impact, or ‘X’, where was it with reference to the right-hand side, traveled portion of that road? The macadam surface, that is, looking down toward Milford? How far from the traveled portion; from the edge of it?

A. From the edge of the driveway to the road, between a foot or 18 inches.

Q. How much?

A. Between a foot and 18 inches.

Q. It was a foot, or thereabouts. In other words, it was close to the right-hand side of that road, is that right?

A. That’s right.

Q. Where was the right-hand side of the car at the point of impact? How far from the right-hand traveled portion of the road?

A. About a foot.

Q. And where was this car being driven with reference to the road? Was it in the middle, on the right-hand side, its right-hand side, on the left-hand side? Whereabouts?

A. He was traveling in the right lane.

Q. And I’ll ask you did he, at any point, or did he not swerve out of that line before the time of collision?

A. No.

Q. When was the first time that you observed this car swerving?

A. Right after they hit.

Q. And in which direction did he then swerve?

A. To the opposite side of the road.

Q. And then you say he continued on and didn’t slow down until he was near the culvert?

A. He was on the Scott side of the house from the culvert.

Q. Now, let me ask you . . . did he, or did he not stop at that particular point?

A. No.

Q. What did he do?

A. He slowed and looked back over his right shoulder.

Q. You mean he kept sitting in the car?

A. Yeah.

Q. He didn’t leave the car at that particular point?

A. No.

Q. Then what happened after he looked over his shoulder?

A. He put it in second gear and went on up the hill and went past me.

Q. Now, you of course say you were at the top of that next hill which, from the drawing on the blackboard, and you say he drove by you when you were standing there?

A. Yes.

Q. What did you do at that point? When he drove right by you?

A. I hollered at him and said, ‘Don’t you know what you have done?’

Q. And by the time he stopped, where was he?

A. About 100 feet past the driveway I ran out of.

Q. Now, right after he stopped, what did he do then?

A. He — his hands were shaking on the wheel and then he started to back up.

Q. And where did he back up to?

A. He backed up just — well, I couldn’t tell you what distance it was, but it was just below where the girl on the bicycle was hit.

Q. Did he, or did he not, get out of the car after he parked it there?

A. Yes, he got out.

Q. What did he do?

A. He sort of walked around. He didn’t talk to anybody I saw only he had a dazed expression.”

On cross-examination, the witness testified:

“Q. Mr. Jones, as you were looking down the road, you saw the little girl riding a bicycle out the driveway, as I understand it?

A. There’s an area there where I could see the house oh, maybe 8 feet, or 10, of the driveway.

Q. Was she eating an orange?

A. No, I drawed that conclusion after I saw her body. The orange had her teeth marks in it.

Q. And you did make the statement she was riding out the driveway eating an orange, is that right?

A. That was what I surmised from seeing the orange right there with her.

Q. Had she lost a shoe as she came down that driveway?

Q. Was she looking back for her shoe as she rode out that driveway?

A. That was only my guess that she was.

Q. And was she looking backward when she rode out onto the highway?

A. At the time I first saw her, she was looking back.

Q. And the car was coming west at about that time and she rode out into the path of the car, is that what you would say?

A. You mean she rode onto the road?

Q. Uh Huh.

A. Yes.

Q. And she struck the car at the right front end?

A. The car struck her.

Q. Did you say that the driver of the car swerved and tried to avoid hitting her but was unable?

A. He swerved after the collision.”

On re-direct examination, he testified:

“Q. Now, I’ll ask you if at any time from the time you first saw the automobile driven by Marshall until the time this impact occurred, you observed or didn’t observe any slackening in speed of that automobile?

A. No. There was no slackening of speed.

Q. When did you first notice variance, in the slackening of speed?

A. After the collision, down near the bottom of the culvert.”

And, on re-cross examination, he testified:

“Q. Now, you spoke of an orange that was lying by the little girl. Had she been eating the orange?

A. It had a bite out of it.”

The companion eye-witness, Friedrich, testified on direct examination by plaintiff:—

“Q. Now, I want you to tell in your own words, Mr. Fried-rich, the jury what you saw that afternoon in reference to that accident. Tell the jury in an audible voice, please.

A. Well, I was cutting on this limb, on this sycamore. I was taking different limbs off which was interfering with the wires and in doing so I was facing towards Mrs. Scott’s and I noticed a car coming up the road. I didn’t know exact whether it was a car or jeep at the time I noticed it. I was watching to see if it was the Jeep because that’s when we quit, and I noticed the little girl was coming out of the driveway and the car hit her and from there I came down out of the tree and ran up the road.

Q. Where did this car go after the moment of impact?

A. It went on up the road past us.

Q. Now, did this car stop?

A. This car did not stop. It was always moving. It slowed down, but then it backed up.

Q. When did it slow down?

A. At about — well, when it hit the culvert it was doing its slowest speed.

Q. Did the driver do anything at that place?

A. He turned around and looked back.

Q. Then what did he do?

A..He picked up speed.

Q. And went where?

A. Up to the edge of Mrs. Simms’ property. The edge towards Milford.

Q. You were working, then, with Mr. Clifford Jones?

A. Yes, Sir.

Q. Where was he situated at the accident?

A. At the base of the tree.

Q. What did he do at the time the car went by?

A. He yelled at the man to ask him to stop and ask him if he knew what he had done.

Q. When the car stopped, where was it with reference to the tree you were working in?

A. 100 feet away.

Q. And then what did this car do after it stopped?

. A. After he, Whitey, told him what he had done, he put it in reverse and went back toward the scene of the accident.

Q. Now, I have drawn on this blackboard two parallel lines representing State Route 131 and down here I have drawn two intersecting lines representing the culvert, Mr. Friedrich, and up here these lines say they represent, Mr. Scott’s driveway. Now, I’ll ask you if at any moment while you were observing this car coming toward you from the time you saw it whether or not from the time you saw it until the impact occurred, it varied its speed?

A. No.

Q. When did it first change its speed?

A. Right after it had the accident.

Q. I’ll ask you, Mr. Friedrich, if at any moment during the time you first observed this car running into your vision and until the moment of impact whether this car did or did not alter its course?

A. It altered its course after it hit the little girl and then it didn’t swerve any too much. It went over the center line about 2 foot.

Q. And then what did the car do?

A. It kept on going down the road.

Q. Where did he slow up with reference to the culvert?

A. He slowed right around the culvert.

Q. I’ll ask you to describe the scene which you observed at the moment of impact. Where was the bicycle and where was the automobile?

A. Well, the bicycle was extending in the road about a foot, you know, or two; something like that, and the car it was running on the right-hand side about a foot from the edge. Something like that.

Q. And who struck whom?

A. The car struck the bicycle.

Q. Now, what happened after this moment of impact with reference to the bicycle?

A. The front wheel of the bicycle was hit and swung back onto the fender and kicked off to the side.

Q. And where was the bicycle after the impact.

A. Lying on the side of the road.

Q. How far from the driveway?

A. Oh, 20 feet; something like that.

Q. How far from the driveway towards the direction of Milford was the body of the girl lying when you saw her? How far down from the driveway?

A. Roughly, around 10 or 12 foot.”

And, on cross-examination, the witness testified:

“Q. Now, you speak of the little girl lying on the highway as 10 or 12 feet from the driveway. Are you referring to the center of the driveway?

A. I am referring to the driveway itself. That’s what I said, roughly. I don’t know exactly.

Q. You say 10 or 12 feet?

A. Say the edge of the driveway.

Q. You say 10 or 12 feet from the edge of the driveway?

A. Yes.

Q. And the bicycle about 10 feet beyond that?

A. Roughly. Yes. It’s on an angle up on the bank.

Q. I did want to inquire of you . . . did you see her eating an orange as she was riding out the drive? Did you see an orange?

A. No, I didn’t see any orange.

Q. Had she lost a shoe as she came out of the driveway?

A. Yes, she had lost something. I wouldn’t say it was a shoe, because she was looking backwards.

Q. She looked backwards, didn’t she?

A. She looked back momentarily. I don’t know how long.

Q. It was your opinion that she was looking back momentarily?

A. Yes, it was.

Q. Did you see her shoe lying in the driveway?

A. Yes, we seen it.”

This was all the evidence adduced by plaintiff as to how the accident happened. It will be observed that no testimony whatsoever as to speed is included. At this point, from the foregoing, it would seem that reasonable minds could not differ but that the defendant approached the scene of the collision in a lawful manner as to speed and position on the highway.

The testimony places a japónica bush of approximately six feet overall spread in the right angle created by highway and driveway at a distance of 15 to 20 feet from the traveled portion of the highway, which' obscured the view of the driver of vehicles in defendant’s position to that extent.

There remains the testimony of the defendant to be examined in a light most favorable to the plaintiff.

The defendant testified generally that he was familiar with the road and location of the driveway at the scene of the collision; knew the Scotts lived there with their children; knew that children were apt to be on that road in the afternoon. He further testified as on cross-examination:—

“Q. Now, isn’t it a fact, Mr. Tischer, or Mr. Marshall, there was only one little bush 5 feet in diameter, or circular growth, in that place that had been cut down?

A. I said I didn’t measure it.

Q. And you mean to tell the jury, Mr. Marshall, that the presence of this little bush 5 feet in size prevented you from seeing anything down this road?

A. That bush most certainly hid the driveway next to the road.

Q. Are you telling us that bush extended from the traveled portion of the road down to 131?

A. It came down to the berm.

Q. Just what do you mean?

A. I mean it hid the driveway, blocked from the direction I were going.

Q. Now Mr. Marshall, with respect to the landscape to the rear of this bush that you talk about in a northerly direction, were there any obstructions between this bush and the end of this driveway?

A. There were not a tree there.

Q. Where was this tree located?

A. Right by that bush.

Q. In reference to the tree, Mr. Marshall, you saw the tree and you know that anything that passed behind this tree could be seen because the bottom branches of this tree were at some distance up from the ground, isn’t that right?

A. All I know, I didn’t see the girl until she hit the highway.

Q. All right. Now we’ll go on from there. Now, where did you first see this girl?

A. I was possibly 15 or 20 foot above the driveway when she run out there.

Q. Where was she when you first saw her?

A. Coming out the drive on her bike. After she passed the bush is when I seen her.

Q. With reference to your automobile, the position of it, at the moment you spotted her, where was .she? Was she on State Route 131?

A. She was coming out the drive toward 131 and I swayed square to the left.

Q. Was she still on the highway at the moment you saw her?

A. I wouldn’t say she was.’

Q. Where would you say she was?

A. She possibly could have had the front wheel on the blacktop.

Q. Please tell us where this girl was with reference to the intersection of the driveway with the state route at the first moment you saw her?

A. I think I made that clear.

Q. How’s that?

A. I think I have made that clear.

A. I said she was entering 131 when I seen her.

Q. How far was her bicycle into 131?

A. I don’t know.

Q. As a matter of fact, you didn’t see her at all until you hit her, did you, Mr. Marshall?

A. I didn’t hit her.

Q. You didn’t? Tell the jury how this collision occurred?

A. She came out there and hit the side of the ear. Anybody can see that.

Q. All right. Where did she hit the car?

A. Right by the front wheel.

Q. Did she run into the side of your car?

A. Run into the fender.

Q. And where were you going meanwhile?

A. I was coming across the road trying to get away from her.

Q. And you swayed violently to the left, is that what you want the jury to believe?

A. That’s what I did.

Q. Where did you come to a stop?

A. Right by the mailbox.

Q. * * * Now from the moment you saw this little girl, you tell us you swerved your car to the left, is that right?

A. I did.

Q. Did you apply your brakes?

A. I did.

Q. At what rate of speed were you going at that time?

A. Between 30 and 35, possibly.

Q. Now, in what distance did you stop in, according to your story?

A. I don’t know.

Q. Where did you commence to apply your brakes?

A. I said 15 or 20 feet above the drive.”

On direct examination, defendant testified:

“Q. Frank, as you approached the Scott residence, I’ll ask you if you can tell the ladies and gentlemen of the jury at what speed you were traveling?

A. In between 30 and 35 mile an hour.

. Q. And as you approached the residence and drive, I’ll ask you whether or not your vision of this driveway was, in any measure, obscured?

A. I couldn’t see the drive.

Q. Speak so the jury can hear you.

A. I couldn’t see the drive. It was completely hidden at the approach of the road.

Q. And Frank, when did you first see the little girl on the bicycle?

A. Well, I was possibly 15 or 20 feet of the drive when she rode out back of the bush.

Q. And what did you do upon seeing the little girl?

A. I swerved sharp to the left of the road.

Q. And what happened, Frank?

A. Well, I — she just run into me.

Q. In your opinion, did the little girl see you?

A. I doubt if she did.

Q. And where did your car come to a stop?

A. Right above the mailbox.”

And, on re-cross-examination, defendant testified:

“Q. Now, you made the statement that the girl ran. into you, is that correct?

A. That’s right.

Q. You are positive about that?

A. Well, the marks on the car shows it.

Q. Please read the question. Read that last question?

A. I am.

Q. But you don’t know just how the accident happened, do you?

A. Well, she came out the drive and hit the car and that’s as much as I know about it.

Q. Did you see her at the time of impact?

A. I seen her hit the car.

Q. How did she hit the car?

A. She come out on her bicycle, out the drive, and hit the car; the right front bumper.

Q. Did you see her through the windshield?

A. I did.

Q. Now, you say you are familiar with the Scott driveway: that’s correct, isn’t it?

A. I have been past there lots of times. Yes.

Q. Let me ask you . . . you also say that this driveway is, in your opinion, or was at that time obscured, is that right?

A. That’s right. At the approach of the highway.”

In general, we state that whether an automobilist has exercised the ordinary care and prudence exacted of him is a question to be determined by the jury under proper instructions. It is an obligation of the driver of an automobile to watch everything and everybody, not only in front of him but on the sides and in the rear of him in so far as possible. 4 O. Jur. 620. In 29 O. Jur., p. 420, the text is:

“In the determination of what constitutes ordinary care, the surrounding facts and circumstances are of controlling significance. The legal duty we owe to others is measured by the exigencies of the occasion. Care must be proportioned to the danger to be avoided. The degree of care to be exercised is determined by the danger to be apprehended. One must use care commensurate with the danger. In other words, speaking generally, what constitutes ordinary care is commensurate with the danger involved.”

Again, at page 424, it is stated:

“The general rule is that one who in a sudden emergency acts according to his best judgment, or who, because of want of time in which to form a judgment, omits the act in the most judicious manner, is not chargeable with negligence, An emergency, however, does not change the requirement of ordinary care. A person confronted with a sudden emergency is required to use only that degree of care which an ordinarily prudent person would exercise under the same or similar circumstances.”

It is the general rule that negligence is never presumed and that the mere fact of an injury does not give rise to any inference or presumption of negligence on the part of either party. On the contrary, the presumption is that each party exercised ordinary care and such presumption obtains until overcome by proof, the burden of which rests upon the plaintiff to show by substantial evidence some negligence on the part of defendant directly or proximately causing the injuries.

What is substantial evidence?

Many attempts at definition are contained in Vol. 40 “Words and Phrases” Perm. Ed. page 499, and Pocket Supplements thereto, page 73.

On page 499 appears:

“ ‘Substantial evidence’ on which verdict must be based to preclude Supreme Court from disturbing verdict is evidence which will convince reasonable men, and on which such men may not reasonably differ. Brennan v. Mayo, 50 P. 2d. 245, 248, 100 Mont. 439.”

“ ‘Substantial evidence’ on which verdict must be based go as to preclude Supreme Court from disturbing verdict is such as will convince reasonable men who will not reasonably differ as to whether evidence establishes plaintiff’s case. Morton v. Mooney, 33 P. 2d 262, 265, 97 Mont. 1.”

In the Pocket Supplement appears: (p. 73)

“Evidence presenting no more than a choice of probabilities is not. Gulf Refining Co. v. Mark C. Walker & Son Co., C. C. A. Tenn., 124 F. 2d 420, 426; Troutman v. Mutual Life Ins. Co. of New York, C. C. A. Ky., 125 F. 2d 769, 773.”

And on page 75:

“ ‘Substantial evidence’ means more than a mere scintilla, and must do more than create a suspicion of existence of the fact to be established, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. U. S. v. U. S. Gypsum Co., D. C. D. C. 67 F. Supp. 397, 451.”

“ ‘Substantial evidence,’ within rule that defendant is not entitled to a directed verdict if any charge of actionable negligence is supported by substantial evidence, is more than a mere scintilla and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Roth v. Swanson, C. C. A. Minn., 145 F. 2d. 262, 265, 266.”

There is absolutely no evidence in the record placing the girl on the bicycle within view of the defendant prior to her emerging from behind the bush, at a point not over 20 feet from the point of impact.

There is absolutely no evidence bearing on the time and distance within which an automobile proceeding in lawful manner at a speed not in excess of 35 miles per hour could or should have been halted.

What evidence is most favorable to plaintiff? That defendant saw the girl the instant she emerged from behind the bush, or that he didn’t see her until she was at the edge of the traveled portion of the highway? Doesn’t this evidence present a choice of probabilities lacking in substance and requiring pure speculation as to what defendant might or might not have done in such an emergency. Does it amount to substantial evidence that defendant failed to keep a proper lookout, or was driving without due regard to the safety and rights of others, particularly the little girl, who burst into his vision on the bicycle looking backward at a point only 20 feet away from the point of impact?

We do not believe the record contains the substantial evidence of the negligence specified in the petition to require submission of the cause to the jury.

The judgment is, therefore, reversed for the reasons set forth'above, with instructions to enter final judgment for the defendant.

HILDEBRANT, PJ, ROSS, J, concur.

MATTHEWS, J, concurs in part' & dissents in part in separate memorandum.

MATTHEWS, J,

concurring in reversal, but dissenting from entering judgment.

I concur in the reversal of this judgment on the ground that the court erred in refusing the request to charge on the subject of contributory negligence on the part of the decedent and her parents, who would be the beneficiaries of any recovery for causing her death.

I dissent from the conclusion that there is no substantial evidence of negligence on defendant’s part. There is evidence that the defendant saw this child when she was 20 feet from the road, approaching his line of travel on a bicycle, looking backward, oblivious of his approach; that he gave no warning and did not change his course until after his right front fender struck the front wheel of her bicycle, notwithstanding he was traveling on extreme right of traveled portion of the road and could have swerved to the left, which he testified he did, but which another witness testified he did not do.

Furthermore, the conduct of the defendant after the collision was such that the jury might have concluded was evidence of an admission of fault. He continued on after the collision and only stopped when challenged by a witness about 600 feet beyond the point of collision. Flight has always been regarded as some evidence of fault. Kotler v. Lalley, 112 Conn., 86. In 31 C. J. S. p. 1052 (Sec. 291) it is stated that: “Defendant’s flight from the scene of an accident is tantamount to an admission of responsibility.” This principle has been frequently applied in automobile accident cases. Many such cases are cited in the notes to Section 291 in the original text and more recent cases in the supplement.

It is my judgment that the case should be remanded for a new trial.


text:
    DUNLEVEY, Plaintiff-Appellee, v. VOLK, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2116.
    Decided December 11, 1950.
    Jacobson & Durst, Dayton, for plaintiff-appellee.
    Oldham & Oldham, Carl Norman, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal from a judgment of the Common Pleas Court for $1,225.00 with interest and costs in favor of plaintiff against the defendant.

The action was for real estate commission predicated upon the exchange of defendant’s real property which was used as a residence and a business room for a tavern, together with the fixtures and business, for certain real estate owned by Mr. and Mrs. Ernest P. Schulties, a 1948 automobile trailer, $1,000.00 in cash, less $450.00 returned by defendant to the owner of the trailer. Defendant also took a mortgage back on the property which he transferred in the amount of $10,000.00.

It was the claim of the plaintiff that as the agent of defendant she, through her husband, her duly authorized agent, was the procuring cause of the defendant making the exchange of his property. The defendant answered by general denial. The cause was submitted to a judge without the intervention of a jury.

Appellant assigns five errors but one only is argued in the briefs, viz: That the finding and judgment were not supported by and were contrary to the manifest weight of the evidence.

A careful reading of this record is convincing that there were three controlling issues.

1. The agency of the plaintiff.

2. Whether or not the plaintiff in the transactions prior to the exchange acted in the best interest of the defendant and

3. Whether or not the plaintiff by her services and activities through her agent was the procuring cause of the exchange

Upon all of these issues there is support for the contention of both of the parties. Their determination was peculiarly for the trier of the facts who resolved all of them in favor of the plaintiff.

The factual development is such that we cannot hold either that the judgment is not supported by the evidence or that it is manifestly against the weight thereof.

The judgment will, therefore, be affirmed.

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


author: By BADER, J.

text:
    LESTER v. ALBERS SUPER MARKETS, INC.
    Common Pleas Court, Hamilton County.
    No. A-126831.
    Decided November 5, 1951.
    Holdt & Schultz, Cincinnati, for plaintiff.
    Harmon, Colston, Goldsmith & Hoadly, Cincinnati, for defendant.
   OPINION

By BADER, J.

This case comes before the Court on the motion of the plaintiff to strike the following allegation from defendant’s answer, to wit: “Further answering and for a second defense to said first cause of action, defendant states that if plaintiff was detained by defendant, through its agents or employees, that said detention did not exceed the period of five minutes and therefore was a reasonable time within which to investigate plaintiff’s conduct.”

The statute provides that any person other than an officer of the law may arrest another.

Sec. 13432-2 GC reads as follows: “When any person may arrest. When a felony has been committed, or there is reasonable ground to believe that a felony has been committed, any person without a warrant may arrest another whom he has reasonable cause to believe is guilty of the offense, and detain him until a warrant can be obtained.”

Sec. 13432-4 GC provides for the duties of the person making the arrest by the authority given in §13432-2 GC, and reads as follows: “Duty of private person making arrest. A private person who has made an arrest must, without unnecessary delay, take the person arrested before the most convenient court or magistrate authorized to issue warrants in the county in which the offense was committed, or deliver such person to a peace officer, who must without unnecessary delay, take such person before such court or magistrate. The peace officer or private person so taking the person arrested before such court or magistrate, must lay or cause to be laid before the latter a complaint, stating the offense for which the person was arrested.”

There is no authority, that the Court can find, that authorizes a person other than a police officer to make an arrest for a misdemeanor. The only authority for an arrest is set forth in §13432-2 GC in the case of the commission of a felony. In that case the accused may be detained for a reasonable time and without unnecessary delay in order that a warrant may be issued. There seems to be a distinction between the authority of a police officer to make an arrest of a person committing a misdemeanor and the authority of an individual making that arrest.

Any person detaining another for any purpose against his or her will may subject’ that person to a suit for damages for false imprisonment.

In the case of Fitscher v. Rollman & Sons Co., 31 Oh Ap 340, 167 N. E. 469, the Court held:

“7. No person except an officer has the right to make an arrest for a misdemeanor without warrant.

“8. No agent of department store owner has right to imprison customer on mere charge of petit larceny.”

In the case of Jacques v. Childs Dining Hall Co., 244 Mass. 438, 138 N. E. 843, 26 A. L. R. 1329, the Court held: “5. The right of private individuals to arrest without a warrant is confined to cases of actual guilt of the party arrested, and the arrest can only be justified by proving such guilt.”

In “Law of Arrest” by Stevens it is said on page 44: “57. For Felony. * * * Where a felony has actually been committed the arrest may be made by any person without a warrant and the arrest is lawful. Private persons in making an arrest act and make the arrest at their own peril, and nothing short of proving that a felony has actually been committed will justify the arrest.”

It appears to this Court that any person other than a police officer or one deputized to serve a warrant may not detain any person against his or her will and that if he or she does so it is done at that person’s peril. The question of detaining the plaintiff for a reasonable time within which to investigate plaintiff’s conduct is, in the opinion of this Court, not a good defense where an individual, not a police officer, detains another against his or her will.

Accordingly the Court is of the opinion that the plaintiff’s motion is well taken and those words in part 2 of the first defense, which plaintiff seeks to strike, should be stricken.


author: By THE COURT.

text:
    BLOWER, Plaintiff-Appellee, v. BERRY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4584.
    Decided May 9, 1951.
    Jacob H. Wirick, Columbus, for appellee.
    Walter R. Hill, Columbus, for appellant.
   OPINION

By THE COURT.

Submitted on motion of the plaintiff-appellee seeking an order dismissing the appeal for failure to file an appeal bond within the required time. The appeal is noted as on law and fact and from a judgment rendered on February 6, 1951. Since no bond has been filed, there has been a failure to comply with §12223-6 GC.

The motion will be sustained but the cause will be retained for determination on questions of law as required by §11564 GC. The appellant will be granted leave to perfect said appeal in accordance with Supplement to Rule VII of this Court. The request for special damages can therefore not be determined at this time.

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


author: Per CURIAM.

text:
    HERSH, d. b. a. M. E. HERSH COMPANY, Plaintiff-Appellee, v. KELMAN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22182.
    Decided June 18, 1951.
    Jos. L. Newman, Cleveland, for plaintiff-appellee.
    Siegel & Siegel, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM.

This cause comes to this Court on questions of law from a judgment of the Common Pleas Court of Cuyahoga County, for a real estate commission, in favor of plaintiff, in the sum of $590.00 with interest and costs. The case was tried to the Court, a jury having been waived.

For brevity and convenience the parties will be referred to herein as plaintiff and defendant as they appeared in the trial court.

The essential facts are not in dispute. The plaintiff, a real estate broker, obtained a signed offer of purchase from prospective buyers known as Leonard G. Cyr and Ruth E. Cyr, husband and wife, dated July 14, 1948, on an “open” listing and not under an “exclusive” option. Thereafter the plaintiff submitted the purchase agreement to the defendant owner who refused to sign same unless and until his liability to pay the commission provided for in the agreement would be subject to a provision that the sale should be fully consummated. This is shown by the following stipulation at page 4 of the record:

“It is further stipulated and agreed by and between counsel that the paragraph reading, that is, the sentence reading ‘Commission to be paid when deal is finally consummated,’ which is in writing rather than printing, was inserted by M. E. Hersh after the signatures of Leonard G. Cyr and Ruth E. Cyr had been affixed to plaintiff’s Exhibit 1, and prior to the signature of Max M. Kelman being affixed to the document; that the condition of the signature of Max M. Kelman being affixed to this contract was the insertion of that writing.”

The record shows that the purchasers did not consummate the deal as appears by the following stipulation at page 6 of the record:

“Mr. Siegel: I want it stipulated further that the defendant was at all times ready, willing and able to consummate this deal, and that not until after he had been definitely apprised by the prospective buyer that the buyer did not intend to consummate the deal, that at a later date this very same property was sold to Joseph Bogol for the same consideration, through a broker by the name of C. A. Barnow Company, to whom a full commission was paid; and in that transaction the deed was filed of record on October 29, 1948, and recorded in Vol. 6646, page 268; the escrow transaction being handled by the National City Bank, Lorain Street Office.

“Mr. Newman: We are satisfied with the stipulation.”

A single question is presented as to the intention of the parties at the time the contract was signed by the defendant.

Certainly the words “commission to be paid when deal is finally consummated” could not relate merely to the act of the defendant in attaching his signature to the contract because the evidence shows that the insertion of these words in handwriting by the plaintiff himself, was upon the request of the defendant, as a condition precedent to the signing of the contract. It follows that the conditional clause could relate only to the happening of some future event. It appears from the evidence that the future event in this case was the consummation of the deal by the actual sale of the property. In cases such as the instant case, a determination of the issue must be governed by the intention of the parties as disclosed by the language employed by them. In case of ambiguity resort may be had to a consideration of the particular facts and circumstances surrounding the making of the contract. It is a fundamental proposition of law that the parties may by contract provide for contingencies and may make the payment of commission dependent upon any valid condition.

It appears from the record that at the time the contract of sale was entered into the building on the property was in the course of construction and that some time after the signing of the contract the prospective purchasers moved to Detroit and abandoned the deal. The record shows that thereafter the purchasers called the owner by telephone from Detroit and asked for the return of their deposit of $200.00 which had been made by them at the time they made the offer of purchaser.

It is a general rule that if a broker has fulfilled the terms of a contract by securing a purchaser who is ready, able and willing to buy, he can recover a commission even though the seller subsequently refuses to complete the transaction. 6 O. Jur. Sec. 49, p. 222. However, this general rule may be varied by agreement of the parties. They may make payment of commission dependent upon an agreement that no commission shall be paid unless the purchase price has been paid and the title transferred.

“A special agreement that no commission shall be paid unless sale is completed, title transferred and payment of the purchase price has been held valid.” 6 O. Jur. Sec. 50, page 223.

It is our conclusion therefore that the failure of the prospective purchasers to consummate the deal without any fault upon the part of the seller, relieved the seller completely under the special terms of the contract from liability for the payment of any commission.

For the reasons stated the judgment of the Common Pleas Court is reversed as being contrary to law and final judgment is entered for the defendant. Exceptions. Order see journal.

SKEEL, PJ, HURD, J, THOMPSON, J, concur.