author: By BRYANT. J.

text:
    STATE, Plaintiff-Appellee, v. DOWELL, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5894.
    Decided August 5, 1958.
    Samuel L. Devine, Pros. Atty., Fred L. Newsom, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Lovaneous Dowell, Ohio Penitentiary, for himself.
   OPINION

By BRYANT. J.

Lovaneous Dowell has filed a document- in twenty-two pages described as “Petition for Writ of Error” and “Brief of Errors.”

Dowell says that he was defendant in the Franklin County Common Pleas Court in case No. 35,981, and was found guilty upon an indictment cnarging murder in the first degree contrary to §2901.01 R. C. He further says that five errors intervened in the trial of the indictment before the said Common Pleas Court during the October term 1956. These errors in substance are: (1) Verdict not sustained by sufficient evidence; (2) Hearsay testimony was offered and admitted on behalf of the State and a mentally incompetent witness was permitted to testify; (3) Defendant was unlawfully restricted in cross-examination of State’s witnesses and an erroneous charge was given to the jury by the trial judge; (4) The Judge’s charge to the jury was prejudicially erroneous and influenced the jury against the defendant and (5) Testimony was erroneously admitted of a man brought back from the Ohio Penitentiary as to what defendant had said to such man.

Included in the papers was a document entitled, “Copy of Appeal to Prosecutor,” which would indicate that on January 31, 1958 a copy was left with the Deputy Clerk of Courts for delivery to the Prosecuting Attorney.

In this connection it will be noted that under date of January 10, 1958 the above defendant attempted to file a motion for leave to file a writ of error, which was returned by this court for failure to comply with the provisions of §2953.06 R. C. This section requires the service of a copy upon the Prosecuting Attorney before filing a notice of appeal or motion for leave to appeal where such motion is required. This is then followed by a brief in some five pages followed by eleven assignments of error and a seven page argument as to the legal insufficiency of the evidence.

The Prosecuting Attorney of Franklin County has filed a motion to dismiss the appeal in the following language:

“Now comes the State of Ohio, Plaintiff-Appellee, by its attorneys, and respectfully moves the Court for an order dismissing Defendant-Appellant’s petition for a writ of error, which was filed January 31, 1958, for the reason that the-State of Ohio does not recognize common-law writs which are not set forth by statute.”

The Prosecuting Attorney in his brief says in effect that his motion should be sustained for the reason that Dowell has filed a petition for writ of error which is not recognized or permitted under the Ohio Code of Criminal Procedure. He relies upon State v. Hayslip, 90 Oh St 199, holding that the writs of coram nobis and coram vobis, while recognized as common-law, are not part of the criminal jurisprudence of Ohio.

One of the leading cases bearing on this question is State v. Whitmore, 126 Oh St 381, which holds that there are neither common-law crimes nor common-law criminal procedure in Ohio and points out that this has been so held since the beginning of the State. Syllabus five of State v. Whitmore, supra, reads as follows:

“An accused person has no common-law rights in Ohio, as there are neither common-law crimes nor common-law criminal procedure in this state. (Key v. Vattier, 1 Ohio 132; Winn v. State, 10 Ohio 345; Allen v. State, 10 Oh St 287; Smith v. State, 12 Oh St 466, Mitchell v. State, 42 Oh St 383; and Johnson v. State, 66 Oh St 59, approved and followed.)”

See also Municipal Court of Toledo et al v. The State, ex rel. Platter, 126 Oh St 103, in which the first branch of the syllabus is as follows:

“Criminal procedure in this state is regulated entirely by statute, and the state has thus created its system of criminal law covering questions of crime and penalties, and has provided its own definitions and procedure.”

To the same effect the holding in the case of Eastman v. State, 131 Oh St 1, branch nine of the syllabus, is as follows:

“In the exercise of the legislative power vested in it by the Constitution of Ohio, the General Assembly has preempted the fields of both substantive and procedural criminal law in this state. (Paragraph one of the syllabus in the case of Municipal Court of Toledo v. State, ex rel. Platter, 126 Oh St 103, approved and followed.)”

See also State v. Huffman, 131 Oh St 27, the first branch of the syllabus in part being as follows:

“We have no common-law crimes in Ohio; neither do we have common-law criminal procedure.”

The Huffman case, supra, is approved and followed in the case of State v. Healy, 156 Oh St 229, which was decided November 21, 1951, and in which the second branch of the syllabus in part is as follows:

“* * * there are no common-law crimes and no common-law criminal procedure in Ohio.”

See also State v. Sholiton, 70 Abs 385.

It follows, therefore, that a petition for writ of error being outside the criminal procedure code can have no efficacy.

Chapter 2953 R. C., governs appeals in criminal cases and in particular §2953.04 R. C., which designates the filing of a notice of appeal in the court rendering the judgment appealed from as the basis for prosecuting such appeal. Sec. 2953.05 R. C., provides as follows:

“Appeal under §2953.04 R. C., may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from sentence and judgment, such appeal may be filed only by leave of the court or two of the judges thereof.”

The original papers in this case from the court below indicate that Dowell was sentenced to life imprisonment in the Ohio Penitentiary on November 9, 1956. It is obvious, therefore, that Dowell lacks an appeal as of right because much more than thirty days, after sentence and judgment, have elapsed.

In face of the clear pronouncements in the decision above referred to, it is clear that appellant has failed to follow the procedural steps contemplated by the Code of Criminal Procedure. It has been repeatedly stated that these must be adhered to and that the Ohio Legislature has preempted the entire field of criminal procedure. Judged by what has just been said the proceedings attempted to be initiated by Dowell are unauthorized and the motion of the Prosecuting Attorney must be sustained.

Let it be said for the benefit of the appellant that the court has examined the several objections he has set forth and that given their most favorable interpretation they cannot be said to rise higher than mere errors, if indeed, they are erroneous.

So far as we are able to learn the case was not appealed immediately after the trial in the lower court. This is not to say that the verdict would have been reversed had there been such an appeal. The law is well settled that mere errors alone are not a sufficient basis for a reversal unless they are prejudicial to the rights of the defendant and have deprived said defendant' of a fair trial.

The fact is that nearly three years have elapsed since the time of the conviction and sentence and even if a notice of appeal in proper form and a motion for leave to appeal in proper form were presently before us, the record lacks anything approaching adequate grounds for sustaining said motion.

We note that the present motion was filed July 3, 1958 and a copy mailed to Dowell. Rule III, Paragraph 1, of the Rules of the Courts of Appeals of Ohio requires an answer brief, if any, be filed within ten days thereafter. No such answer brief has been filed and as this is being written more than twenty-five days have elapsed without any such brief being filed. We must assume that defendant-appelant did not wish to file such answer brief.

The motion of the State of Ohio to dismiss the appeal will, therefore, be sustained.

PETREE, PJ, MILLER. J, concur.


source: Caselaw Access Project

author: By BOPE, J.

license: Public Domain

text:
    GROVEDALE FEED COMPANY, INC., Plaintiff, v. CORRON, Defendant.
    Municipal Court, Findlay.
    No. 123.
    Decided April 10, 1957.
    William C. Foster, for plaintiff.
    Robert D. Schuck, for defendant.
   OPINION

By BOPE, J.

This is an action for breach of a contract of sale, in which the seller claims $1942.50 with interest from July 4, 1956, as the balance due upon the price of the goods. The buyer denies owing such sum, and counterclaims for damages in the sum of $2000.00, on a theory, as the Court understands, of breach of warranty of quality.

Plaintiff’s petition alleges that on February 23, 1956, defendant “ordered” 2250 turkey poults “to be raised by plaintiff until said poults were 8 weeks old and to be delivered then to defendant.” The price was to be $1.70 per poult, of which 78 cents per poult, amounting to $1755.00, was paid down. On May 10, 1956, plaintiff placed said poults in a brooder house; by July 4, 1956, they were 8 weeks old; on that date defendant “accepted” them and ordered them delivered to his farm. Delivery was made on July 5th, of 2175 birds. Plaintiff claims 92 cents per bird was due and unpaid on delivery, amounting to $2001.00, less 78 cents per bird for 75 birds not delivered, leaving a balance of $1942.50 for which plaintiff asks judgment.

Defendant’s answer admits the order and, substantially, the other averments of the petition, but says the poults were to be delivered in a healthy condition and free from disease; that upon delivery they were sick and, unknown to defendant, suffering from infectious and contagious diseases; that upon discovering this, defendant attempted to reject them and tender them back, but plaintiff refused to take them back and, instead, doctored them and promised an adjustment.

Defendant’s cross petition alleges additionally that 180 of these turkeys died, 900 were sickly and not marketable, defendant lost time and incurred expense in caring for the sick-flock and in preventing their diseases from spreading to other birds on his farm, all to his damage in the sum of $2000.00, for which he asks judgment.

Plaintiff’s reply denies generally the allegations of the cross petition.

Trial was held November 21, 1956, before the Court without a jury. The following witnesses were sworn and examined: For the plaintiff— James Wilbur Zuercher, Treasurer, and Melvin Sehroeder; for the defendant — George William Corron, Dr. George DeFrieze, and Mrs. George Corron.

The testimony was lengthy, was fully reported, and will not be set forth here, but portions of it may be referred to by the Court in developing the disposition of the case.

FINDINGS OF FACT

The Court finds from the evidence, by a preponderance thereof, the following facts:

In 1956 plaintiff supplied to defendant approximately 6500 young ' turkeys aged 8 weeks, in two flocks or “hatches” of 2175 and about 4400 birds, respectively. This case concerns-the first hatch.

The parties had established a course of dealing dating from March 17, 1954, when they entered into a written contract for the sale and purchase of a flock of turkeys to be completed that year. In 1955 and 1956 their agreement was by parol, that is: oral, or partly verbal and partly in writing, and some of the terms must be inferred from the conduct of the parties.

Defendant “considered” (so he testified) that the 1954 contract terms applied to the 1956 agreement, except as changed or modified. One of these (No. 3) was: “Party of first part agrees to deliver said poults to farm of party of second part, in healthy, thrifty condition.” J. W. Zuercher, plaintiff’s first witness, testified that it was plaintiff’s custom to deliver only healthy birds, and stated on cross examination that their agreement with defendant for 1956 “was for healthy birds, of course.” This fact was established.

On February 23, 1956, defendant ordered 2250 turkeys from plaintiff, to be delivered to his farm at 8 weeks of age, at $1.70 each of which 78 cents, amounting to $1755.00, was paid down. They were to be at plaintiff’s risk and expense until time of delivery, thereafter at defendant’s. Plaintiff ordered the poults the same day from Zachrich Hatchery, Defiance, Ohio.

On May 10, 1956, the 2250 poults (1-day old) were received and delivered by plaintiff to the Mel Schroeder farm, R. R. 2, Columbus Grove, Ohio. Schroeder was a farmer and turkey raiser in the employ of plaintiff. He put the poults in a brooder house and cared for them the next 8 weeks, under plaintiff’s direction.

During the 8 week period, the flock became sick. They were seen every week by a representative of plaintiff, and on four occasions by defendant. Some mortality is usual among young turkeys, but in this flock, according to Schroeder’s record, 41 birds died the second week and 66 died the third week. This rate is unusual and excessive. Plaintiff sent 7 of these birds to an animal pathology laboratory at St. Louis for examination. They were reported suffering from “air sack,” a lower respiratory disease. The flock was then treated by Schroeder, at plaintiff’s direction, with auromycin for 7 days, and with sulfa quinoxalin for 5 weeks. The mortality rate dropped to normal. Because of this sickness plaintiff received a refund from the hatchery, in an amount which does not appear.

At the end of 8 weeks, defendant came to Schroeder’s farm, in the evening, examined the flock and, although he appears to have had some misgivings, he instructed Schroeder to deliver the flock to him the next day, which was done.

On July 5th, shortly after the delivery, defendant observed sulfur-colored droppings, indicating disease. He called Dr. George DeFrieze, a veterinarian, who came and examined the flock. His findings indicated that many of these birds had been infected with “blackhead,” an intestinal disease caused by protozoa which can be fatal in 4 weeks, the birds having had it for from 10 to 21 days. Dr. DeFrieze prescribed dosages of a medicine called “heptrol,” which was administered by the defendant, and the doctor saw the flock every 2 weeks thereafter until they were sold. The blackhead would clear up and re-occur. It stunted the growth of some turkeys but not all. This flock also developed sinusitis, unrelated to the blackhead.

On July 10th and 24th defendant, tendered the flock back to the plaintiff and plaintiff refused to take them. Defendant kept the flock, treating and feeding them, and sold them at 27 weeks of age. Normal age at which turkeys are sold to the trade is 24 weeks.

As to financial loss resulting from the diseased condition of this flock, defendant testified that he calculated his losses at a total of $3242.78, which he itemized as follows:

Cost of medicines and medicated feed supplements, $1233.42

Mortality in excess of normal 2%, 230 birds @ $2, 460.00

Disinfecting implements, labor and material (est.) 300.00

Extra feed for 3.weeks (estimated) 350.00

Loss due to down-grading:

134 head graded B instead of A, averaged 152.96

1767 head of sub-standard weight, averaged 746.40

On cross examination defendant reduced the number of birds sold as grade B to 68, but maintained that the other figures were correct.

CONCLUSIONS OF LAW

The problems presented by this case arise in that specialized branch of the Law of Contracts known as the Law of Sales. This is closely regulated by statute, as Ohio has had the Uniform Sales Law since January 1, 1909. In the Revised Code it is found in §§1315.01 to 1315.76, inclusive. These sections are generally clear, but in some there is room for interpretation, and as the law is applied to the facts of this case there arises at least one question of mixed fact and law which can be decided either way on the basis of support to be found in Ohio cases. This will be noted in the course of this discussion.

We have here a divisible contract to sell future goods (turkeys), which became a sale when title passed. For definitions of terms used see §1315.01 R. C.; 35 O. Jur. 663, Sec. 3. The contract consisted of the whole understanding and agreement of the parties, which was in parol and much of which must be inferred from their acts and conduct. Sec. 1315.04 R. C. The Court finds that their conduct conformed to all of the terms and provisions of the written contract of March 17, 1954, except those prescribing the number of birds, the dates, and the price, hence concludes that the other terms were included in the agreement for 1956.

One of these terms (No. 3) was that plaintiff would deliver the birds in healthy, thrifty condition. The Court has already found as facts that the number delivered was 2175, the date: July 5, 1956, and the price: $1.70 each, of which 78 cents apiece had been paid for 2250 birds. The Court has also found as a fact that many of these birds were sick on delivery. Whether the plaintiff knew that they were sick is immaterial, and it is not necessary for the Court to make a finding on that point, for reasons that will appear.

Title and property interest in these birds passed from plaintiff to defendant at the time of delivery to defendant’s farm. The reason for this conclusion is that such was the intention of the parties, as deduced by the Court from the terms of the contract, conduct of th'e parties, usages of trade, and the fact that the seller was required by the contract to deliver the birds to the buyer at his farm. Secs. 1315.19 and 1315.20(E) R. C.

Risk of ordinary loss also passed from seller to buyer at time of delivery The reason, again, is that in this case the parties so intended: but the general rule is the same, in the absence of agreement. Sec. 1315.23 R. C.

Having received the birds, the law requires the buyer to accept and pay for them. Sec. 1315.42 R. C. He is entitled to a reasonable opportunity of inspecting them. Sec. 1315.48 R. C. And he is deemed to have accepted them when, after delivery, he does any act in relation to them which is inconsistent with ownership of the seller, or when, after a reasonable time, he retains the goods without rejecting them. Sec. 1315.49 R. C. There is no doubt that, in this case, the defendant accepted the goods.

But acceptance by the buyer does not discharge the seller from liability in damages for breach of a promise or warranty in the contract to sell. Sec. 1315.50 R. C. So it becomes important to inquire whether the provision numbered 3 in the contract of March 17, 1954, which the Court has found was included in the agreement for 1956, constituted a warranty, surviving acceptance. The plaintiff argued vigorously that it did not, that the words used were mere words of description; that the defendant had inspected the turkeys prior to delivery and accepted them in reliance on his own judgment, not on representations of the plaintiff; that no fraud was shown, there being no evidence that the plaintiff knew the birds were sick upon delivery; that if the birds were of inferior quality the buyer was not bound to accept them, but since he did accept them, he is deemed to have assented that they corresponded to the description and is precluded from subsequently questioning it. The Court thinks otherwise.

This is the heart of the case. This is the question which could possibly be decided either way. On due consideration this Court is of the opinion and therefore finds that Provision No. 3, mentioned above, which is referred to in the introductory paragraph of the old contract as a “condition,” amounted to a promise on the part of the plaintiff that the turkeys would be in healthy, thrifty condition. It was in express terms. It was part of the consideration for the price. It was an affirmation whose natural tendency was to induce the buyer to purchase, and the Court believes and finds that the buyer purchased the turkeys relying thereon. It was therefore an express warranty. See §§1315.12 and 1315.13 R. C. And failure to perform this promise was a legal wrong. 13 O. Jur. 65.

There is also evidence in this case from which the Court could find that the seller knew the buyer wanted these turkeys to feed and fatten for resale in the ordinary course of trade, and that the buyer relied to a large extent on the seller’s judgment. These facts would raise an implied warranty under §1315.16 R. C.

Where a warranty exists, it is the law that acceptance of the goods by the buyer does not discharge the seller from liability in damages for a breach thereof, unless the agreement of the parties expressly or by implication so provides. Sec. 1315.50 R. C.; 35 O. Jur. 858. There was nothing to that effect in the agreement in this case.

Hence, while the unpaid seller may maintain an action for the price (§1315.64 R. C.), the buyer may keep the goods and set up against the seller the breach of warranty, by way of recoupment or diminution of the price, or as a separate cause of action on the contract. Sec. 1315.70 R. C. In this case the buyer has set up his cause of action as a counterclaim for damages.

The only question remaining to be decided is the amount of defendant’s damages. There is no claim for punitive damages. Compensation only is sought, but defendant has attempted to prove some special damages.

Actual or compensatory damages are either general or special. General damages are those which naturally and necessarily result from a wrongful act or omission, which are directly traceable to, and the probable and necessary result of, the ipjury. 13 O. Jur. 69. The Sales Act states the rule thus in §1315.70 R. C.:

“The measure of damages for breach of warranty is the loss directly and naturally resulting, in the ordinary course of events from the breach of warranty.”

And further restricts damages thus:

“In the case of breach of warranty of quality, such loss, in the absence of special circumstances showing proximate damage of a greater amount, is the difference between the value of the goods at the time of delivery to the buyer and the value they would have had if they had answered to the warranty.”

In this case defendant offered no evidence of the value of the poults at the time of delivery, other than the contract price.

Special damages are such damages as do not necessarily result from the injury complained of, though they may be the natural result thereof. 13 O. Jur. 69. Now in this case defendant in his cross petition specifically claims that about 180 birds died, 900 were so sick that they would not develop into marketable birds, defendant lost time and suffered expense in buying and administering medicine, and in preventing their disease from spreading to other birds on his farm, all to his damage in the sum of $2000.00. He cannot recover more than the amount claimed in his cross petition. 13 O. Jur. 71. Further, only such special damages can be allowed as are shown by a preponderance of the evidence to have resulted naturally and proximately from the injury (§1315.70 R. C.), or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it (35 O. Jur. 987, 988).

The Court finds by a preponderance of the evidence that the following items of special damage to the defendant resulted naturally and proximately from the breach of plaintiff’s warranty, or may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it:

Cost of medicines and medicated fee supplement, $1233.42

Mortality in excess of normal, 180 birds at $2, 360.00

Labor and material cost, disinfecting implements, 200.00

Extra feed for 3 weeks, 300.00

Total $2093.42

The total damage will be reduced to $2000.00, the amount claimed in the cross petition.

CONCLUSION

For the reasons given above, finding and judgment will be awarded the plaintiff on its petition, and against the defendant, for the balance due upon the contract, in the sum of $1942.50 with interest at 6% per annum from July 4, 1956, and costs.

Finding and judgment will be awarded the defendant on his cross petition, and against the plaintiff, for damages for breach of warranty in the sum of $2000.00 and costs made on the cross petition.

An Entry may be prepared so recording the action of the Court, saving exceptions to both parties.


author: By MILLER, J.

text:
    MUSICAL BAR, INC., d. b. a. GOULD’S MUSICAL BAR, INC., Appellant-Appellant, v. BOARD OF LIQUOR CONTROL, Appellee-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5919.
    Decided September 23, 1958.
    Isadore Topper, Leonard J. Stern, Columbus, for appellant.
    William Saxbe, Atty. Genl., Chester Hummell, Asst. Atty. Genl., Columbus, for appellee.
   OPINION

By MILLER, J.

This is a law appeal from the Common Pleas Court affirming an order from the Board of Liquor Control revoking the Class D-5 liquor permit of the appellant for an alleged violation of Regulation 59 of the Ohio Board of Liquor Control in that

“On or about April 26, 1957, you and/or your agent or employee did approach and solicit in and upon the permit premises patrons to purchase drinks of beer and/or intoxicating liquor, either for himself or other persons— in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control, and contrary to public decency, sobriety and good order.”

The question therefore presented is whether or not there was a violation of Regulation 59, which reads:

“The holder of a permit issued by the Department shall not, nor shall any of his agents or employees solicit or in any manner approach a patron for the purchase of drinks of beer or intoxicating liquor for himself or such agent or employe or any other person. The holder of a permit issued by the Department shall not permit any person not in his employ to solicit or in any manner approach a patron for the purchase of drinks of beer or intoxicating liquor- either for himself or for any other person.”

The record reveals that two of the Department’s agents visited the appellant’s place of business and one of them purchased a drink of whiskey and paid seventy cents for the same to the bartender who rang up the sale. At this point a young lady who was selling cigarettes on the premises, and an employee of the appellant, came up and occupied the stool next to the agent who was sitting at the bar, and the waitress who had sold the agent the drink asked him if he would buy the young lady a drink. She also asked the agent to buy her a drink, which he consented to do, and she then ordered cognac from the waitress. A drink was then poured from a bottle marked “cognac,” which was served to the agent, and for which he was charged and paid the sum of $1.80 for the same.

It also appears that he purchased three more drinks from the same bottle within the next five minutes, at the request of the recipient, paying $1.80 each time. He then confiscated the bottle from which the drink was poured, and the contents proved to be non-alcoholic. The bottle bore the information “containing less than one-half of one percent of alcohol” in small print, with the word “cognac” in bold letters.

Since the recipient of the drink ordered “cognac” from the waitress in the first instance, and after consuming the contents, which was poured from a bottle labeled “cognac,” she solicited three more drinks, it would appear to the members of this Court that the Board was justified in finding that the solicitation was for a drink of “cognac,” which the record reveals to be an intoxicating liquor. The fact that the drink served was not intoxicating is not material as the offense under the regulation is the soliciting of intoxicating liquor.

Counsel for the appellant cite the case of Board of Liquor Control v. Walnut Cafe, 74 Abs 69, but this case may be distinguished on the facts. Here the solicitor merely asked for a drink which was not furnished to her. The Court stated at page 70:

“There is no evidence at all as to what kind of a drink it was — soft drink, beer or intoxicating liquor.”

In our case there is evidence from which the Board was warranted in finding that the solicitation was for “cognac,” which the record reveals to be an intoxicating liquor.

It is, therefore, our conclusion that the order of the Board of Liquor Control is supported by evidence that is reliable, substantial and probative and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By J J. P CORRIGAN, J.: By J. J. P. CORRIGAN, J.:

text:
    ANGELO, Plaintiff, v. TRAVIGLIA, Defendant, OHIO VALLEY AUTOMOBILE INSURANCE COMPANY, New Party Defendant.
    Common Pleas Court, Cuyahoga County.
    No. 653079.
    Decided December 27, 1957.

      Harrison, Spangenberg & Hull, Cleveland, Norman W. Shibley, of Counsel, for the plaintiff.
    Jones, Day, Cockley & Reavis, Cleveland, Victor DeMarco, of Counsel, for the defendant.
   OPINION

By J J. P CORRIGAN, J.:

Plaintiff, in his supplemental petition, seeks judgment against a new party defendant, The Ohio Valley Automobile Insurance Company, in the sum of Sixteen Thousand Four Hundred and Sixty ($16,400.00) Dollars with interest thereon from December 7, 1955.

Plaintiff alleges therein that on or about May 19, 1953, the said insurance company and the defendant, Vincent N. Traviglia, entered into a contract of insurance and the company executed and delivered to Traviglia its Combination Automobile Policy No. A 25746, under the terms of which Traviglia was insured, during the term of such insurance, which term included July 18, 1953, at the place where any automobile covered by said policy was being used, against liability for personal injury or property damage suffered or alleged to have been suffered by any person as a result of any accident occurring while said policy was in force.

Plaintiff further alleges that exact amounts of liability and the exact date expressed in said contract of insurance are unknown to him.

It is further alleged that on July 18, 1953, plaintiff was the owner and operator of an automobile which was struck by an automobile driven by defendant, Traviglia, in Cleveland; that plaintiff sustained certain injuries and damages; that said automobile which was driven by Traviglia and struck this plaintiff’s automobile was insured by the new party defendant; that by reason of the negligent operation of said automobile by Traviglia the aforesaid collision resulted in damages and injury to plaintiff.

Supplemental petition further states that an action was commenced in this Court by plaintiff against Traviglia to recover damages for personal injuries and property damages; that defendant was duly served with process therein; that the new party defendant was duly notified of the aforesaid collision and of the filing of said action.

Plaintiff further alleges that on December 7, 1955, trial was held and judgment was duly rendered in said action in favor of plaintiff and against defendant, Traviglia, in the sum of $16,460.00 together with costs and that said judgment remains unpaid.

To this supplemental petition, the new party defendant, The Ohio Valley Automobile Insurance Company, filed an answer admitting it is an Ohio corporation engaged in the business of selling casualty insurance.

It is further admitted that on or about May 19, 1953, the new party defendant, The Ohio Valley Automobile Insurance Company, through its duly authorized agent, the Carr Insurance Agency, issued a policy of insurance in the name of the defendant, Vincent N. Traviglia, known as a combination automobile policy, insuring said Vincent N. Traviglia for one year against loss from any liability imposed by law for bodily injury and property damage to any person by reason of the negligence of Traviglia in connection with the use of Traviglia’s automobile, with certain limits as stated in the policy; it is denied that said policy was ever delivered to Traviglia.

New Party defendant admits that on or about July 18, 1953, Traviglia was involved in an automobile accident resulting in damages to plaintiff’s automobile and injuries to his person; that said plaintiff filed a petition in this action and that new party defendant was duly notified of this filing.

It is further admitted that on December 7, 1955 a judgment was rendered against Traviglia for $16,460.00 with costs.

It is denied that on July 18, 1953, its policy of insurance Combination Automobile Policy No. A-25746 was in full force and effect; it is further alleged that, for failure by defendant, Traviglia, to pay in full the premium due thereon within the time provided and agreed therefor, in accordance with an agreement made between Traviglia and the solicitor employed by the Carr Insurance Agency, the said policy of insurance was returned to it for cancellation and was cancelled fiat on June 20, 1953 by new party defendant. All other allegations in supplemental petition are denied.

Trial by jury was waived by the parties and the case was tried to the Court.

The evidence reflects that the policy which is the subject of this suit was solicited for the Carr Insurance Agency, agent of the new party defendant, by one Henry D. Gamiere. Gamiere’s wife was a licensed solicitor of casualty insurance and he wrote casualty insurance on his wife’s license. Henry Gamiere met Traviglia through a man named Ciaffi in May of 1953. At that time they discussed the fact that Traviglia needed an automobile liability insurance policy. On or about May 17, 1953, Gamiere met Traviglia again at St. Clair Avenue and Whitcomb Road. Gamiere asked Traviglia about taking out the policy and Traviglia stated that at the present he had no money. Gamiere stated that he would give him thirty days to pay the premium but that if he did not pay in that time the policy would be cancelled. Gamiere told Traviglia that the premium would be Forty-Nine ($49.00) Dollars. Traviglia said that he was short of funds and did not know when he could start paying. Gamiere told Traviglia that he wanted him to come to Gamiere’s house and make the first payment and Traviglia stated that Gamiere was to hold the policy and if it was not paid it was to be cancelled. Gamiere got the information necessary from Traviglia to have a policy issued.

Gamiere reported the business to the Carr Insurance Agency and two days later, on May 19, 1953, he received the policy by mail from the agency. The policy period was from May 19, 1953 to May 19, 1954 Several days after Gamiere received the policy he received Ten ($10,001 Dollars payment on the premium from Traviglia. Gamiere retained the policy and received a Fifteen ($15.00) Dollar payment on the premium on June 5, 1953 from Mrs. Traviglia, wife of the defendant, at the Traviglia home. When Gamiere received the policy from Carr Insurance Agency, he also received an identification card and an invoice. At the time he received the Fifteen ($15.00) Dollars from Mrs. Traviglia, he gave her the identification card and told her that the balance of the premium must be paid within the thirty days or the policy would be turned in for cancellation. On June 13, 1953, Gamiere again went to the Traviglia home and found nobody home.

When it was getting close to the expiration of the thirty-day period, Mrs; Gamiere called Mrs. Traviglia on two occasions and was told by Mrs. Traviglia that she did not have any money and to cancel the policy.

Gamiere sent the policy to the Carr Agency. It was received there on June 17, 1953 and then was sent to the Ohio Valley Insurance Company endorsed “Flat Cancellation” by the Carr Agency. The policy was received there on June 20, 1953 and cancelled on that date.

The Ohio Valley Insurance Company looked to Carr Insurance Agency for premium payments or business from the agency. Carr looked to the solicitor for payment of the premiums.

On July 18, 1953, Traviglia was involved in an automobile accident and as a result of that a judgment was obtained against him by plain - tiff. Nothing has been paid on said judgment.

The determinative question presented in this case is whether the defendant, Vincent N. Traviglia, was insured with the new defendant company on July 18, 1953, as alleged in plaintiff’s supplemental petition.

Under §3929.27 R. C., Gamiere was clearly the agent of Ohio Valley for the purpose of soliciting the insurance and procuring the business. There is no question in the mind of this Court and it was admitted in his testimony by the president of the Ohio Valley Insurance Company that Traviglia was insured from May 20, 1953 to June 20, 1953.

The fact that Gamiere was the agent of the insurance company for the above purpose, apparently does not prevent Gamiere from becoming the agent of Traviglia for the purpose of the delivery of the policy to him. Stachler v. Travelers, 66 Abs 323, 117 N. E. (2d), 176.

Once a policy is m effect it can only be cancelled in accordance with the provisions of the policy. Under paragraph 22 of the Conditions of the Policy in this case, it “may be cancelled by the named insured by surrender thereof.” This surrender in the opinion of this Court may be made by the named insured, in person, or by his duly authorized agent. Generally, cancellation of an automobile liability policy by the insured is not an act so personal in its nature that it cannot be delegated in the aosence of statutory prohibition of such delegation. Chamberlain v. Employers. 289 Mass., 412, 194 N. E., 310.

Decided February 20, 1958.

Any request for cancellation of the policy clearly must be made after the policy has been issued and while it is in force. It does not follow, nowever, that the agent who makes the request in behalf of the insured, must have been authorized to do so, after the policy has been issued, and while it was in force. Such authority may have been given prior to, or contemporaneously with the issuance of the policy. It may aiso be given upon condition, to be exercised in the discretion of the agent, upon the happening of the condition.

The terms of the contract of insurance here are, of course, contained in the written policy. The Court finds, however, that there was a separate oral agreement entered into between Traviglia and Gamiere with respect to cancellation upon the failure of Traviglia to pay the premiums. This was not part of the contract of insurance between Traviglia and Ohio Valley Automobile Insurance Company. Only Traviglia and Gamiere, acting in his own behalf, and not for his principal, were parties to this agreement. Gamiere did not undertake to bind his principal by this agreement. If Traviglia failed to pay the premiums within the time agreed upon with Gamiere, it was not intended to result in a forfeiture of the policy. It was for the protection of Gamiere, who, upon the issuance of the policy, became liable to the Carr Agency for the amount due for the premium. In extending credit, he was acting for himself and not for the insurance company. In consideration of the extension of credit, Traviglia agreed that upon his failure to pay the amount due as a premium, within the time agreed upon with Gamiere, the latter, acting for him, might cancel the policy, and thus relieve himself of liability to the Carr Agency. The effect of this oral agreement was to authorize Gamiere, in behalf of Traviglia, to have the policy cancelled by the insurance company, by making the surrender as provided in the policy. The agent having surrendered the policy, upon the failure of Traviglia to pay the amount due him for the premium on the policy within the time agreed upon, the policy was cancelled on June 19, 1953. Thereafter the policy ceased to have any validity as a contract of insurance. Dawson v. Concordia Fire Insurance Co., 192 N. C., 312, 135 S. E.. 34.

In the light of the principles enunciated in the cases cited above, the finding and judgment on the supplemental petition is for the new party defendant, The Ohio Valley Automobile Insurance Company. Order See Journal.

ANGELO, Plaintiff, v. TRAVIGLIA, Defendant; OHIO VALLEY AUTOMOBILE INSURANCE COMPANY, New Party Defendant.

Common Pleas Court, Cuyahoga County.

No. 653079.

SEPARATE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

By J. J. P. CORRIGAN, J.:

The plaintiff in this action, tried by the Court without a jury, having requested the Court to state in writing the Findings of Fact found separately from the Conclusions of Law, the Court does so as follows:

FINDINGS OF FACT

From a preponderance of the evidence, the Court finds the facts to be as follows:

1. Plaintiff has brought this supplemental petition, making The Ohio Valley Automobile Insurance Company a new party defendant, under authority of §§3929.04 and 3929.05 R. C.

2. New party defendant (now known as Ohio Valley Insurance Company) is an Ohio corporation, engaged in the business of selling casualty insurance by and through authorized agents including The Carr Insurance Agency of Cleveland, Ohio.

3. The Carr Insurance Agency employs licensed solicitors including the wife of Henry D. Gamiere; the latter, although not a licensed solicitor for casualty insurance, wrote such casualty insurance on his wife’s license through The Carr Insurance Agency.

4. Defendant, Vincent N. Traviglia, was in need of an automobile liability insurance policy, but was without funds to pay the premium therefore and so he entered into a separate oral agreement with Henry D. Gamiere, whereby the latter agreed to give defendant Vincent N. Traviglia 30 days from the date of the issuance of the policy within which to pay the full premium due thereon with the further express understanding and agreement that Henry D. Gamiere was to retain possession of the policy of insurance with authority to return and surrender the said policy for cancellation in the event the full premium was not paid within said period of time; this separate oral agreement between defendant Vincent N. Traviglia and Henry D. Gamiere was without the prior knowledge of the new party defendant.

5. On May 19, 1953, The Carr Insurance Agency, at the instance of Henry D. Gamiere, issued new party defendant’s Combination Automobile Policy No. A-25746, naming defendant Vincent N. Traviglia as insured, the policy period being from May 19, 1953 to May 19, 1954, and the premium due thereon being in the amount of Forty-Nine ($49.00) Dollars; The Ohio Valley Insurance Company looked to Carr Insurance Agency for premium payments on business from the agency and Carr Insurance Agency looked to the solicitor for payment of the premium.

6. The Carr Insurance Agency gave the insurance policy to Henry D. Gamiere for delivery to defendant Vincent N. Traviglia, the insured; in accordance with the separate oral agreement referred to in Finding of Fact No. 4 above, Henry D. Gamiere retained possession of the policy with authority to return and surrender same for cancellation in the event the insured did not pay him the full premium due thereon within the time agreed upon.

7. Several days after issuance of the policy of insurance defendant Vincent N. Traviglia paid Ten ($10.00) Dollars on account on the premium and on June 5, 1953 his wife made a further partial payment of Fifteen ($15.00) Dollars, at which time she was given an identification card by Henry D. Gamiere and reminded that the balance of the premium had to be paid within the time agreed upon or the policy would be returned and surrendered for cancellation; although several attempts were made to collect the balance of the premium, no further payments were made thereon and Mrs. Gamiere, solicitor and wife of Henry D. Gamiere, was advised that no further funds were available for payment of the balance due on the premium and was told to cancel the policy.

8. Paragraph 22 of the Conditions of the policy of insurance provides:

“22. CANCELLATION. This policy may be cancelled by the named insured by surrender thereof or by mailing to the company written notice stating when thereafter such cancellation shall be effective. This policy may be cancelled by the company by mailing to the named insured at the address shown in this policy written notice stating when not less than five days thereafter such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice and the effective date of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the company shall be equivalent to mailing.
“If the named insured cancels, earned premiums shall be computed in accordance with the customary short rate table and procedure. If the company cancels, earned premiums shall be computed pro rata. Premium adjustment may be made at the time cancellation is effected and, if not then made, shall be made as soon as practicable after cancellation becomes effective. The company’s check or the check of its representative mailed or delivered as aforesaid shall be a sufficient tender of any refund of premium due to the named insured.”

9. Not being paid the full premium due on the policy within the time agreed upon between defendant Vincent N. Traviglia and Henry D. Gamiere, the latter, pursuant to such request and in accordance with the separate oral agreement as outlined in Finding of Fact No. 4 above, returned and surrendered for cancellation the policy of insurance to The Carr Insurance Agency which received it on June 17, 1953 and after endorsing thereon “FLAT CANCELLATION” sent it to new party defendant, Ohio Valley Insurance Company, where it was received on June 20, 1953 and cancelled fiat as of that date; on such flat cancellation Ohio Valley Insurance Company did not charge any premium and no premium was ever received by it on the cancelled policy.

10. On July 18, 1953 defendant Vincent N. Traviglia was involved in an automobile accident, resulting in injury to the plaintiff and damage to his property, for which plaintiff filed suit against defendant Vincent N. Traviglia in the Common Pleas Court of Cuyahoga County, Ohio and the new party defendant was duly notified thereof; by reason of the aforesaid cancellation of the policy of insurance, one month prior to the accident, the new party defendant denied liability thereon and consequently declined to participate in the defense of all suits and claims made against defendant Vincent N. Traviglia arising out of the aforesaid automobile accident.

11. On December 7, 1955, plaintiff recovered a judgment against defendant Vincent N. Traviglia in the sum of Sixteen Thousand Four Hundred and Sixty ($16,460.00) Dollars, with costs, which judgment remains unpaid.

CONCLUSIONS OF LAW

1. Under §3929.27 R. C., Henry D. Gamiere was the agent of the Ohio Valley Insurance Company for the purpose of soliciting the insurance and procuring the business; however, the statute did not preclude Henry D. Gamiere from becoming agent of the insured defendant Vincent N. Traviglia for the purpose of delivery of the policy.

2. Ohio Valley Insurance Company’s Combination Policy No. A-25746 was effective when issued on May 19, 1953 subject to all of the terms and conditions thereof and remained in full force and effect until cancelled on June 20, 1953.

3. A policy of insurance once in effect may be cancelled only in accordance with the provisions thereof and Ohio Valley Insurance Company’s Combination Policy No. A-25746 provided for cancellation by the insured by surrender of the policy.

4. A policy of insurance cancellable upon surrender thereof by the insured, as in Ohio Valley Insurance Company’s Combination Insurance Policy No. A-25746, may be surrendered for cancellation either by the named insured in person or by. his duly authorized agent, which authority may be given such agent prior to or contemporaneously with the issuance of a policy of insurance and may also be given upon condition, to be exercised in the discretion of the .agent, upon the happening of the condition.

5. The separate oral agreement between the defendant Vineent N. Traviglia (the insured) and Henry D. Gamiere with respect to surrender of the policy for cancellation upon failure of defendant Vincent N. Traviglia to pay the premium, was not a part of the contract of insurance between defendant Vincent N. Traviglia and new party defendant Ohio Valley Insurance Company and in respect thereof Henry D. Gamiere acted in his own behalf and did not undertake to or bind Ohio Valley Insurance Company.

6. The effect of the separate oral agreement between the insured Vincent N. Traviglia and Henry D. Gamiere was to authorize said Henry D. Gamiere, as agent of and in behalf of the insured Vincent N. Traviglia, to surrender the policy to the issuing company for cancellation, as provided in the policy, in the event the insured Vincent N. Traviglia did not pay to Henry D. Gamiere the premium due thereon.

7. Henry D. Gamiere under authority of the separate oral agreement and as agent for and on behalf of the insured, Vincent N. Traviglia, surrendered the policy of insurance for cancellation and the policy was cancelled by the new party defendant Ohio Valley Insurance Company on June 20, 1953.

8. Ohio Valley Insurance Company’s Combination Policy No. A-25746 was cancelled upon surrender thereof, by Henry D. Gamiere, as agent of the insured, in accordance with Paragraph 22 of the Conditions thereof on June 20, 1953 and ceased to have any validity thereafter as a contract of insurance and was not in full force and effect on July 18, 1953.

9. Ohio Valley Insurance Company is not liable on its Combination Policy No. A-25746 to defendant Vincent N. Traviglia, plaintiff, or anyone else claiming under §§3929.04 and 3929.05 R. C., by reason of any claims or judgments arising out of the accident which occurred on July 18, 1953 .and involving the automobile owned and/or operated by defendant Vincent N. Traviglia; plaintiff is not entitled to judgment against new party defendant as prayed for and judgment is hereby rendered for new party defendant, The Ohio Valley Automobile Insurance Company.


text:
    STATE, Plaintiff-Appellee, v. TYLER, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5916.
    Decided June 3, 1958.
    Samuel L. Devine, Pros. Atty., Victor E. Vaile, Jr., Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Lane, Huggard & Alton, Jack R. Alton, of Counsel, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court, Division of Domestic Relations, finding the defendant guilty on the charge of acting in a way tending to cause the delinquency of one Roberta Tyler, a minor under the age of eighteen years, to wit, of the age of fourteen years. A jury was waived and the case was heard by the court.

The following errors are assigned:

I. The judgment of the Court is against the manifest weight of the evidence.

II. The judgment of the Court is contrary to law.

III. The overruling objections of the defendant to testimony produced by the State.

The record reveals that Roberta Tyler is fifteen years of age and the daughter of Robert Tyler, the defendant herein; that she was called as a witness for the prosecution and testified that she had had immoral relations with the defendant about two weeks prior to the time the complaint was made to the Juvenile authorities, as well as on many other occasions during the preceding year. The defense conducted a thorough cross-examination and she fixed the dates of the alleged acts as near as she could recall, one of which was on September 7, another on September 14, 1956, and the others indefinite, but it usually was on a Friday night when her stepmother, with whom the defendant and she were then living, was absent from the home.

The third assignment of error relates to the following ruling made by the court in response to the question propounded to the prosecuting witness when testifying on direct examination:

“Q. Do you remember any of the circumstances of this particular time, the last time your father had relations with you?
“MR, ALTON: If your Honor please, we will object. I would like to have some days pinned down.
“THE COURT: Oh, in this type of case dates within a period is proper, that is sufficient, but acting in a way to cause a delinquency it is not necessary that it be fixed as to a definite day. It’s sufficient if it’s fixed to the approximate time of the offense of acting in the way.
“Q. Do you, by any chance, remember the date?
“A. No, sir.
“THE COURT: She said it was a couple of weeks prior to the time of the filing of the complaint,
“Q. Do you remember what time of the day it was, Roberta?
“A. In the evening.
“Q. In the evening. Your stepmother was there?
“A. No.”

We find no prejudicial error in the ruling made by the court. It will be noted that after the ruling had been made she was permitted to ' answer the question. Also, on cross-examination she testified as to dates to the best of her ability.

In support of the claim that the judgment is against the manifest weight of the evidence, counsel for appellant urges that the court should have given greater weight to the evidence offered on behalf of the defendant, who denied the accusation and produced several witnesss who testified as to his good character. It therefore became incumbent upon the court to determine wherein the truth lay. This is a duty which rested solely with the trial court who had the opportunity of seeing the witnesses and observing their demeanor on the witness stand. In passing upon the credibility of the witnesses we note that Judge Rose said at page 40 of the record:

“She told a frank story. She was not bold, she was somewhat emotionally disturbed. She showed some emotions, in her tears, in her hesitancy and lack of knowledge as to how to answer some of the questions. Certainly, in her testimony there was nothing to indicate any lying on her part, or fabrication of a gruesome type of story such as this. There is nothing to indicate that she has hallucinations or a mind which would dream up such events and happenings. She apparently felt disgraced by the conduct of her father, and yet there was no evidence of bitterness or hatred toward him in her testimony; nothing in her manner or in her expression which would indicate to the court that there was any ill feeling or vicious feeling or hatred on her part toward the father in this case.
“The defendant brought in witnesses as to his reputation and, of course, brought in some evidence attempting to show that the allegations of the little girl, his daughter, was because of hatred or because of ill feeling or because of bitterness or to get even.
“The court, in weighing the testimony here of these parties, so far as the testimony between the two, is. convinced that this little girl is telling the truth. The court is convinced from her testimony, the mannerism, the frankness, that she is not lying.”

In Cooper v. State, 121 Oh St 562, Judge Robinson makes a statement at page 569 which appears to be applicable to our case:

“The Court of Appeals, in reviewing a criminal case upon the weight of the evidence, owes a greater duty than to determine merely whether there was ‘some evidence’ tending to support the verdict. In such situation, if the Court of Appeals is unable to determine from the record wherein the truth lies between conflicting evidence, it may well adopt the conclusion of the jury and the trial court; they being in a better situation to judge of the truth by reason of their opportunity to see the witnesses and observe their conduct. But where the truth is manifest upon the record itself, by reason of the absence of conflict, or by any other sound reason, the Court of Appeals cannot escape its duty to determine-whether the verdict and/or judgment is supported by the degree of proof which the character of the case requires.”

We have carefully scrutinized the entire record and can find nothing therein which detracts, as a matter of law, from the testimony of the prosecuting witness. The court did not err in giving credence to her testimony and it therefore may not be said that the judgment is against the manifest weight of the evidence.

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

PETREE, PJ, BRYANT, J, concur.


text:
    VISINTINE AND COMPANY, Plaintiff-Appellant, v. NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY, and BALTIMORE AND OHIO RAILROAD COMPANY, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5768.
    Decided April 29, 1958.
    Knepper, White, Richards, Miller & Roberts, William E. Knepper and John A. Jenkins, of Counsel, Columbus, for plaintiff-appellant.
    Wilson & Rector, Harrison W. Smith, of Counsel, Columbus, for defendant-appellee, The New York, Chicago and St. Louis Railroad Company.
    Alexander, Ebinger & Wenger, John D. Holschuh, of Counsel, Columbus, and Harrington, Huxley & Smith, T. Lamar Jackson, of Counsel, Youngstown, for defendant-appellee, The Baltimore and Ohio Railroad Company.
   OPINION

By MILLER, J.

This is a law appeal from a judgment in favor of the defendants-appellees rendered upon the sustaining of demurrers to the amended petition after the plaintiff had indicated a desire not to plead further. The correctness of the ruling on the demurrer of each of the defendants is therefore the question presented by this appeal.

Two causes of action were set forth in the amended petition, one of which was grounded upon a breach of contract and the other sounded in tort alleging that the defendants and each of them carelessly, negligently and in disregard of the obligations assumed by them under their railroad contract with the City of Fostoria and the State of Ohio, failed and refused to perform their said work in sequence and in accordance with the plans and specifications and as the direct and proximate result thereof the plaintiff suffered the damages set forth in the amended petition. An examination of the same reveals the following pertinent facts: Prior to 1950 railroad tracks of each of the defendant companies, The New York, Chicago and St. Louis Railroad Company and The Baltimore and Ohio Railroad Company, crossed United States Route 23 at grade on Wood Street in the City of Fostoria, Ohio. In August, 1949, the City of Fostoria passed an ordinance giving its consent to the grade crossing elimination and agreed to bear certain costs of the improvement. In May of 1950 the Director of Highways for the State of Ohio, by official entry, declared that the separation of grades was reasonably necessary and expedient. Following this, on the 17th day of July, 1950, the Director of Highways entered into a contract with the City of Fostoria and the defendant railroad companies, which contract set up the proportion of costs of the grade crossing elimination to be borne by each of the parties thereto, and also provided for certain work to be performed by the defendant companies. These contracts with the City of Fostoria and the railroads did not cover all of the necessary work to be done on the project, the balance of which was to be performed under a separate contract and which was accordingly entered into at a later date, between the plaintiff-appellant Visintine Company, and the State of Ohio. Each of the separate contracts provided that the work should be performed in accordance with the plans and specifications submitted for the project and in the sequence designated. The nature of the work was such that none of the parties could perform its part in a single operation, but numerous ones were required and the time when each was to be performed was specified and spelled out in the plans and specifications agreed upon. These contracts were subsequently carried out and the project completed. Plaintiff now claims damages against the railroad companies as the result of said project and claims m the amended petition that the defendant railroad companies failed to perform their work as required by their contract with the State of Ohio. As the plaintiff was not a party to the contract between the State of Ohio and the railroad companies, it is attempting to recover in this action against the railroads upon the theory that it is a third party beneficiary to the contract of July 17, 1950, between the State of Ohio and the defendant railroads.

The facts may be further clarified, to wit:

(1) The railroads promised the State of Ohio that they would perform certain specified work in a certain sequence with other work to be done by another contractor.

(2) The State of Ohio relied upon these promises and entered into a contract with the plaintiff Visintine to perform the balance of the work.

(3) The amended petition alleges that the railroads breached their contract resulting in the damage alleged to Visintine.

(4) There was no actual contract between Visintine and either of the railroads.

The trial court was of the opinion that Visintine was only an incidental beneficiary of the contracts between the railroads and the State of Ohio, and therefore had no right of action against the railroads, citing Chapter 6 of Restatement of the Law of Contracts, Sections 133-147. The law seems to be well settled that an incidental beneficiary to a contract may not maintain an action on the same if it is not a party. However, counsel for .the appellant urges that Visintine is not an “incidental beneficiary” but is a “creditor beneficiary,” and if correct in this assumption it would be qualified to maintain the action. Section 133 (b) of Restatement of the Law, supra, defines a “creditor beneficiary” as follows:

“Where performance of a promise in a contract will benefit a person other than the promisee, that person is * * *
“(a) * * *
“(b) a creditor beneficiary if * * * performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, * * *.”

Now, the promisee (the State of Ohio) owed to Visintine (the beneficiary) the duty to perform those portions of the work that were necessary antecedents of Visintine’s work. In E. W. Foley, Inc. v. State, 61 N. Y. S. 2d 118, the court said:

“It is a well-settled principle of law in the construction of contracts that when the obligation of performance by one party presupposes the doing of some act on the part of the other, prior thereto, that the neglect or refusal to perform such act, not only dispenses with the obligation of performance by the other, but also entitles him to rescind, or, when rescission will not afford him an adequate remedy, to continue the work, and recover such damages as the delinquency has occasioned against the defaulting party.”

See also, Mason Tire & Rubber Co. v. The Cummins-Blair Co., 116 Oh St 554, 559; Williston on Contracts, Section 1318.

The performance of the promise by the railroads of the duties they owed to the State of Ohio would have satisfied a duty the promisee (State of Ohio) owed to Visintine, making it a “creditor beneficiary” under the definition found in “Restatement of the Law,” supra.

In 11 O. Jur. 2d, Section 180, we find the following:

“A third person who is a creditor beneficiary may generally maintain an action at law upon a promise made for his benefit by another. A person falls within the designation of creditor beneficiary if performance of the promise will operate to discharge a real or a supposed or alleged duty, and is not intended as a gift. It is sufficient to support the contract itself, if the promise is made by the promisor upon a sufficient consideration passing between him and the promisee; when the third person adopts the acts of the promisee in obtaining the promise for his benefit, he is brought in privity with the promisor and may enforce the promise as if it were made directly to him.”

In support of the above statement the case of Vail v. The Reuben H. Donnelley Corp., 56 Oh Ap 219, is cited. See also Southwest General Construction Co. v. Price, 267 S. W. 2d, 855; M. T. Reed Construction Co. v. Virginia Metal Products Corp. 213 F. 2d, 337. In the latter case the State Building Commission of Mississippi awarded three different contracts for the construction of a library building for the University of Mississippi. The plaintiff’s contract was for the general construction of the building and the defendant’s contract was for the furnishing and installation of steel bookstacks. A third contract was for the electrical work. The contractors agreed in their respective contracts to coordinate their work and cooperate with each other so as to facilitate and expedite the completion of the building. The defendant failed to install the steel bookstacks on time. The plaintiff recovered a verdict in the trial court which was later set aside, rendering judgment for the defendant notwithstanding the verdict. The Court of Appeals reversed, stating:

“Upon the facts established by the verdict of the jury, and under our interpretation of the written contract, we agree with appellant that it was a direct beneficiary of the contract of appellee with the state building commission, which obligated the appellee to cooperate with appellant and coordinate its work with that of appellant so as to enable both of them to complete their respective jobs on time. The building could not have been completed without such mutual obligation on the part of each of the contractors, and the obligation so to do was a part of the consideration that induced each of the contractors to undertake its particular job at the agreed price. The jury heard all of the facts in evidence, and returned a verdict for appellant for the amount stated.”

Counsel for the railroads urge that an intent to benefit a third person must appear in order to enable him to sue on the contract. We are of the opinion that in considering the railroad contracts and the plans and specifications and sequence of work specifications it is apparent that it was intended to benefit the contractor, as they all provided for cooperation in order that the job might be completed as scheduled. See Sections G-4.01, G-5.04, G-5.05 and G-9.07 of Standard Specifications which were made a part of the contracts. In the sequence of work specifications, seven steps of construction were assumed by the railroads and six, by Visintine. It was necessary for the railroads to perform step No. 1 before Visintine could perform step No. 2, and then the railroad, No. 3, and Visintine, No. 4, etc. All parties agreed that this procedure should be followed. Throughout all contracts it was made plain that the work of Visintine was dependent upon the performance by the railroad of their contractual obligations and vice versa. By each performing their obligations in the proper sequence a benefit was incurred upon the other by permitting them to complete their work in accordance with the terms of their various contracts.

From the facts alleged in the amended petition and under the Ohio authorities cited, we conclude that Visintine was a “creditor beneficiary” and qualified to maintain the first cause of action against the defendant railroads. The court erred in sustaining the demurrers to the first cause of action and in rendering final judgment for the defendant thereon.

We find no error in the court’s sustaining the demurrers to the second cause of action which was based upon negligence. In order for an action for tort to lie there must be a duty owed by one party to the other and in this case the duty owed by the defendants was a duty to perform their contract with the State of Ohio and did not involve the plaintiff in any particular. Mere negligence in interfering with another’s contract rights will not sustain a cause of action for damages.

The judgment entered on the first cause of action will be reversed; on the second, affirmed and cause remanded for further proceedings according to law.

PETREE, PJ, BRYANT, J, concur.


author: By GESSAMAN, J.

text:
    REA, Plaintiff, v. GRANT-LONG CO. et, Defendants.
    Common Pleas Court, Franklin County.
    No. 198085.
    Decided August 13, 1957.
    John C. Wheatley, for appellee.
    John R. Shickler, for appellant.
   OPINION

By GESSAMAN, J.

Defendants below have appealed to this court from a judgment of the Municipal Court of Columbus, Ohio, for plaintiff below.

The undisputed facts are that plaintiff left her Mercury automobile in the parking lot operated by defendant Grant-Long Co., through its servant and attendant, Elmer Barklow, the ’ other defendant. She stopped her car near the attendant’s office and left her keys in the ignition lock so that the car could be moved and parked. When she left it, the car apparently was in good running order. Shortly, after leaving, Mr. Barklow got in the car and, as he testified at page 7:

“I pulled her car up here (indicating), I started to back so I could get parallel with my space and brought her car about half a length of a car, moving backward and — boom—the engine stopped.”

At page 26 of the record Mr. Barklow testified that he backed the car at about five miles per hour. He also testified that he asked the plaintiff not to leave the selector lever “in parking position because it was hard to get in and hard to get out.”

At page 29 of the record Mr. Barklow further described the action of the car.

“Q. And were you moving it forward or backwards? A. Backwards.
“Q. Backwards? A. Yes, sir.
“Q. And was there a sound in connection with it stopping? A. There was a slight sound, yes, such as you might bump a bumper or something of that kind. There was no grabbing noise or nothing.
“Q. Did you actually hit anything that caused you to stop? A. I did not.
“Q. The car just suddenly stopped? A. It just stopped.”

And on the same page the following testimony of the same witness:

“Q. And there was no previous indication that anything was wrong with the car until it suddenly stopped was there? A. Outside of the parking gear was hard to get in and out. That is the only thing that I know of.”

At page 17 of the record the plaintiff testified that “it could be difficult” to take the lever out of or put it in parked position.

At page 11 of the record the plaintiff testified that “I always parked there.” “At least on the average of three times a week I did.”

Mr. Frank Eyerman, service manager at Bexley Mercury, testified that when the automatic transmission on plaintiff’s car was opened it was found that the “parking prawl” was sheared off and that there was extensive damage to other parts of the transmission.

There is evidence as to the probable damage to a similar transmission if the selector lever is moved from reverse to forward while the car is moving backward. There is also evidence as to the probable damage if the selector lever is moved to park position while the car is in motion. But there is no evidence in the record that Mr. Barklow made either of these moves or any move of the selector lever. He was not asked any such question.

Counsel for the parties admit that the relationship of bailor and bailee existed at the time in question. The Supreme Court in the case of Agricultural Insurance Co. v. Constantine, 144 Oh St 275, has prescribed the rules to be followed in actions by the bailor against the bailee for failure to deliver the property in the same condition. The first rule applicable to the present question is in syllabus 4.

“4. In an action by a bailor based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver.”

There is no question but that the plaintiff made a prima facie case. The next rule is found in syllabus 5.

“5. Where the bailee proves loss of the property by theft, but attempts no expiation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not thereby rebut the presumption of negligence or want of due care arising from his failure to redeliver.”

It is our opinion that the defendants clearly rebutted the presumptions of negligence or want of due care, for Mr. Barklow, as we have pointed out, testified that his only act was to move the car in reverse at about five miles per hour for a distance of a half a car length: At that point something happened.

The third rule is found in syllabus 6 and at this point particular consideration must be given to the last sentence of the syllabus:

“6. In an action by a bailor for damage by reason of the bailee’s failure to redeliver the bailed property, the burden of proof is upon the bailor to prove that the bailee was guilty of negligence or want of due care. In determining that question, the presumption of negligence or want of due care arising from bailee’s failure to redeliver, his explanation of the circumstances surrounding such failure and any evidence offered to rebut such explanation, all should be considered and weighed by the trier of the facts. To entitle the bailor to prevail the preponderance of all the evidence must support the conclusion that the bailee was guilty of negligence or want of due care.”

One of the contentions of counsel for defendants is that the judgment is against the manifest weight of the evidence. We have related all of the testimony as to what Mr. Barklow did after he started to move the car. There is no evidence. that he even moved the selector lever while the car was in motion. Counsel for plaintiff contends that “The evidence irrefutably shows that the original stopping of the car must have been caused by putting the gear selector into the ‘park’ position while the car was in motion.” With this we cannot agree. Mr. Eyerman testified as to what would happen if the selector lever were moved into park position while a car was in motion but there is no evidence that that was done in this case. As we have pointed out, the only evidence is that Mr. Barklow put the car in reverse, backed it a short distance at about five miles per hour and something happened. He was not asked as to whether he moved the selector lever. Mr. Eyerman described the condition in which he found the plaintiff’s transmission but no one testified as to what caused that condition.

The evidence discloses that the transmission on the plaintiff’s car is a complicated piece of,mechanism made up of many gears and other parts. Undoubtedly the improper use of the selector lever could have caused damage to the transmission but there is nothing in the record from which one can infer or find that that is the only way in which the transmission can be damaged. Without some evidence of some act of negligence or want of due care on the part of Mr. Barklow, neither he or the defendant corporation is liable for the damages found. Such a bailee, in the absence of an agreement, is not an insurer of property left with it.

The inescapable conclusion is that there is no evidence of any act of negligence or any act of want of due care on the part of the defendants. Our conclusion obviously is, therefore, that the judgment of the trial corut is against the manifest weight of the evidence, that the same is reversed and judgment be entered for the defendants.


author: Per CURIAM:

text:
    RICE et, Plaintiffs-Appellants, v. BURT, Jr., et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23312.
    Decided July 10, 1957.
    H. H. Hoppe, for plaintiffs-appellants.
    Arter, Hadden, Wykoff & Van Duzer, for defendants-appellees.
   OPINION

Per CURIAM:

This motion comes before this court seeking an order against a surety on an appeal bond filed by the appellants, said motion seeking the assessment of damages under the provisions of §2505.20 R. C. The action came to this court on appeal on questions of law and fact from a judgment and decree entered in the Common Pleas Court of Cuyahoga County for defendants. Upon a trial de novo of the issues in this court, a decree was entered for the defendants, from which decree the plaintiffs appealed to the Supreme Court of Ohio. A stay of this court’s decree was ordered and a release of the funds attached for jurisdictional purposes was likewise stayed upon the plaintiffs having filed a supersedeas bond as provided by law. The Supreme Court on December 7, 1956, dismissed the plaintiffs’ motion to certify the record, and on January 14, 1957, returned its mandate to this court so that on that date the decree of this court became final and the defendants entitled to the funds attached. The defendants are therefore entitled to such damages as they have sustained by reason of their being deprived of the use of the money attached. They are not, however, entitled to attorney fees as claimed.

The court therefore enters a finding against said bond to the extent of the damages sustained and directs the parties to present evidence by affidavit or deposition as to the extent of damages. Upon failure to act on such order, the court will appoint a Special Master to take testimony for the purpose of fixing the damage.

Motion is granted as to damage for loss caused by attachment of money, but overruled as to attorney fees. Exceptions. Order see journal.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By CROSSLAND J:

text:
    TAYLOR et, Plaintiffs, v. SIDWELL et, d. b. a. SIDWELL BROTHERS, Defendants.
    Common Pleas Court, Muskingum County.
    No. 40456.
    Decided February 27, 1958.

      Meyer, Johnson & Kincaid, for plaintiffs.
    Graham, Graham, Gottlieb & Johnston, for defendants.
   OPINION

By CROSSLAND J:

Briefly discussing each of the two foregoing subjects, first concerning the latter of the two, the Court believes that there was some substantial evidence, however incredible it may have seemed or appeared to the defendant, that required submission of the case to the jury and that there was sufficient evidence which, along with the credibility of witnesses, afforded a premise from which reasonable minds might and could arrive at different conclusions. If the Court was correct, as it believes that it was, in excluding the proffered testimony of the expert witness Berger, there is no more occasion now and, in fact, less to award judgment to the defendant notwithstanding the verdict than there was or would have been to have directed a verdict for the defendants at the conclusion of the trial.

Whatever little testimony there was in the sense that the direct testimony of causal connection of a particular occasion or occurrence was that of one of the plaintiffs, there was considerable other testimony, as well as occurrences and circumstances at that and other times, including the admitted and acknowledged operation of the defendants’ business concurring during and throughout the period of time testified to and related in plaintiffs’ evidence. If, as the Court believes, the jury was privileged to conclude from the evidence before it and the reasonable inferences thereto attached, that defendants were liable, then there was sufficient latitude of judgment and discretion concerning the amount to which plaintiffs are entitled and the evidence to warrant it in the indulgence of credibility which the jury was privileged to give in its deliberation. Accordingly, motion for Judgment Notwithstanding the verdict is overruled and denied, with exceptions to the defendants. '

Before mentioning facts and circumstances of evidence relating to the contended error of the Court in excluding expert testimony of a seismologist, it is first pertinent for a better understanding of the relationship of the law to the pertinent evidence to first briefly consider the law.

As was noted by counsel for the defendants in the reference made to the treatment of “Evidence” in 31 O. Jur. 2nd, Sections 521 and 522, the author states:

“If it is utterly impossible to perform an experiment upon facts and . under circumstances substantially similar to those in issue, evidence offered of an experiment is inadmissible.”

Actually, there is considerable doubt in the Court’s mind as to whether or not there was longer, November 6, 1957, any possibility of performing an admissibly acceptable experiment in this case, in view of the fact that in the meantime, in the two years that had elapsed since the injuries and damages complained of, defendants’ operation had moved at least one thousand feet west from the point and location of blasting which was done in and preceding October, 1955, according to the testimony of Homer Sidwell. Also, according to all the evidence, all of the minéable product had been blasted and extracted from all that part of the field occupied and operated by the defendants at the time of the occurrences complained of by the plaintiffs. Entirely aside from the more than two years difference in time and whatever differences may have existed between the late summer and early fall of 1955 and the late fall of 1957 in weather, winds or other conditions of nature, along with air currents and vibrations and substrata conditions, which may have affected the Taylor property in particular, regardless of effects elsewhere or otherwise, it was no longer possible to reproduce any experiment either at or near the original source locale.

“Proof of an experiment, having been proffered for the purpose of showing that an alleged result is the consequence of a certain act or operation which is considered to exist in the case, should not be permitted unless the conditions and circumstances attending the experiment are shown to have been similar to those which in fact existed in the case.” (Jones on Evidence, Vol. 2, Page 772, Section 410.)
“Section 852-c. Similarity of Conditions. In order that an experiment shall possess sufficient probative value to warrant the admission of evidence thereof, it is necessary that the circumstances under which the experiment is made shall have been similar to the circumstances prevailing at the time of the occurrence involved in the controversy, and if the conditions were dissimilar in an essential particular the evidence is rejected, especially if the conditions were more favorable to the party offering the evidence. It is not necessary, however, that the conditions should be exactly identical but a reasonable or substantial similarity is sufficient, and the lack of exact identity affects only the weight and not the competency of the evidence, provided always that there is such a degree of similarity that the evidence of the experiments made will accomplish the desideratum of assisting the jury to an intelligent consideration of the issues of fact presented. The burden is on the party offering the evidence to show similarity in essential conditions, and preliminary proof of identity of conditions should, of course, be received. It is for the court to determine whether the conditions are sufficiently similar to warrant admission of the evidence.” (22 Corpus Juris, Pages 758-9.)
“3. Evidence — Relevancy—Experiments. Evidence as to experiments, made after the injury, to test the accuracy of the testimony of witnesses to the occurrence, is admissible, if the experiments were made under conditions substantially the same as at the time of the accident.” (3d. Syl., Railway Co. v. McMichael, 171 S. W., 115.)
“Experiments, to be admissible in evidence, must be made under conditions practically identical with the conditions that they purport to illustrate.” (New York Life Insurance Co. v. Alman); (22 F., 2nd., 98, Page 101.)

From the foregoing and other authorities, all of which are in line with the statement of Ohio law as herein above first referred to, proffered evidence of an expert witness is clearly inadmissible when the experiment sought to be introduced has such striking dissimilarities as are demonstrable in this particular instance. The real effect of testimony of the expert in this case, with the conditions so strikingly dissimilar, would have merely amounted to a flat declaration on the part of such witness that what the jury found happened could not have happened and that the injuries to the property could not have occurred in spite of the fact that the jury found that they did. In short, the real and only effect of the. expert’s testimony would have been a substitution of his judgment for that of the jury as to whether or not the evidence which the jury received warranted any consideration of the jury’s verdict. The jury was impanelled to hear and decide the facts in the case, which is not the function of an expert witness.

Even if it could conceivably have been an error to have excluded testimony concerning the experiment, it could hardly have been a prejudicial error in view of the fact that there was actual evidence offered by the defendants concerning the actual operation of their use of explosives at the very time and with respect to the identical matters of which the plaintiffs complained in the testimony of Mr. Earl Grether, whose home and greenhouse business adjoined plaintiffs’ premises. The expert’s testimony would have related only to the November, 1957, effect upon the Grether property and at its location from a source position considerably different from that of 1955, while the Grether testimony fully and in minute detail covered everything that pertained to his own property with relation to the blasting that occurred at the identical location and at the times that were the actual complaint -of the plaintiffs and all of which was before the jury for its consideration in assessing credibility of each of the plaintiffs and of other witnesses, including Mr. Grether, as well as the closely related evidence of the lack of effect of the identical blasting to the neighboring Grether property. At the most, therefore, the proffered testimony of the expert Berger was not only merely cumulative but much less related in a number of essential respects and did not even pretend to reproduce the original essential factors.

In considering matters of evidence and of law in a particular case, such as here, even though each casé stands on its own bottom, it is important and this Court seeks to relate and define its position on questions of law and facts or circumstances to which the law may or may not be applicable, in such a way as to afford as consistent a course as is humanly possible in the approach of all similar situations that have arisen or may arise. It seems to the undersigned that in any similar factual situation timely objection to evidence such as was proffered in this case, and whiGh this Court welcomes the opportunity of having before it to pass upon, would have to be sustained as being outside of a well defined rule of law which is intended to exclude theoretical surmises or professional speculation. Accordingly, motion for new trial is overruled and exceptions noted in behalf of the defendants.

Journal Entry may be prepared by counsel for the plaintiffs in accordance with the finding and determination of the Court on the within two motions of the defendants. -


text:
    KLASSEN, Plaintiff-Appellee, v. NEWELL, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5731.
    Decided October 11, 1957.
    Elwood L. Carpenter, Columbus, for plaintiff-appellee.
    King & Gross, Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Municipal Court of Columbus rendered in favor of the plaintiff-appellee.

The parties will hereafter be referred to as they appeared in the trial court.

The petition sets forth a cause of action against the defendant based upon a separation agreement between the parties, who were married at the time, providing for the support of their minor children after their separation. The amended answer to the petition was a general denial in addition to four other special defenses set forth but which are not pertinent to the issues here presented.

The record reveals that the said agreement was entered into in the state of New York and provided for the support of the children during their respective minorities. The eleventh item of this agreement provided for its incorporation into a decree of divorce and is as follows:

“Nothing herein contained shall be deemed to preclude or bar either of the parties hereto from maintaining a suit for absolute divorce against the other in any jurisdiction, upon any lawful grounds whatsoever; provided, however, that if consistent with the rules and practice of the court granting such decree of absolute divorce, the terms and provisions of this agreement shall be incorporated in such decree, by reference or otherwise, and no provision shall be made in any such decree for the support of the wife except as herein provided.”

It further appears that subsequent to said agreement the wife, who is the plaintiff herein, established a domicile in the State of Nevada and filed her action for divorce in said state. The divorce was duly granted, the decree reciting that the husband appeared by counsel and filed his answer to the petition. The decree further provided:

“It is further ordered, adjudged and decreed that the agreement entered into between plaintiff and defendant, dated March 17th, 1950, a copy of which was introduced in evidence as plaintiff’s Exhibit ‘A,’ be and the same hereby is, in all respects ratified, confirmed, approved and adopted by the above entitled Court and made a part hereof by reference thereto, and each of the parties hereto is hereby expressly directed and ordered to comply with said agreement and with all the terms and provisions thereof. * * *”

It is urged by counsel for the defendant, who is the appellant, that the court was without jurisdiction over the subject matter of the petition and also that the judgment is against the manifest weight of the evidence. The jurisdictional question is the only one requiring our attention, as it does not appear to us that the judgment is against the weight of the evidence.

The record reveals that during the course of the trial a motion was entered by the defendant for a dismissal of the petition for the reason that the court had no jurisdiction over the subject matter of the case. This motion was overruled and the question therefore presented is whether it erred in so doing.

It is the contention of the defendant-appellant that the separation agreement became merged with the divorce decree and therefore if the plaintiff has a cause of action in this state it must arise by virtue of that final decree. This theory of the case is supported by the case of Holloway v. Holloway, 130 Oh St 214, which was a contempt proceeding against a husband for failure to pay alimony as provided in a separation agreement which was incorporated into and made a part of the divorce decree. It was there urged that a separation agreement could not be enforced by a contempt proceeding. The court, speaking through Judge Day, said at page 216:

“The problem here presented is not the enforcement of an agreement by contempt proceedings, but rather the enforcement by contempt proceedings of a decree which has incorporated therein an agreement to pay alimony. The distinction is important. A decree is valid as such regardless upon what it may be grounded. There is nothing in the law to render a decree invalid or ineffectual merely because it is predicated upon an agreement of separation, which agreement is incorporated bodily in the decree. A decree which incorporates an agreement is a decree of court nevertheless, and as soon as incorporated into the decree the separation agreement is superseded by the decree, and the obligations imposed are not those imposed by contract, but are those imposed by decree, and enforcible as such.”

Applying these principles to our case it is our conclusion that the separation agreement entered into by the parties hereto became superseded by the divorce decree and any action in this state must be based upon the judgment of the Nevada court which retains jurisdiction during the minority of the children. The continuing jurisdiction of the Nevada court is provided for by Section 9462 of that state’s Code, to wit:

“The court, in granting a divorce, shall make such disposition of, and provision for, the children, as shall appear most expedient * * * provided that in actions for divorce the court may during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance, and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.
“* * *A11 acts or parts of acts in conflict herewith are hereby repealed.
“* * * As amended, statutes 1947, 271.”

The principle of law announced in the case of Holloway v. Holloway, supra, seems to be in accord with the general rule which is discussed at some length in 17 Am. Jur. 94, Section 907. It is there stated:

“The prevailing rule is that where the underlying obligation is a promise to pay money, a judgment or decree for the payment of money merges the obligation in the judgment or decree and an independent action cannot later be brought on the obligation; but where the obligation and decree require something other than the payment of money, the obligation is not merged in the decree. This rule applies in divorce cases * *

The judgment will be reversed and since the question presented is one of law this court will enter the judgment that should have been entered in the trial court to wit, the motion to dismiss is sustained, the petition is ordered dismissed and judgment rendered for the defendant for costs.

The cause will be remanded to the Municipal Court of Columbus for enforcement of the judgment.

PETREE, PJ, BRYANT, J, concur.