author: By THE COURT.

text:
    CORDLE et, Plaintiffs-Appellees, v. SHEAF, d. b. a. GEORGE SHEAF AND COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4381.
    Decided September 21, 1950.
    O. H. Roth, Williams, Reynolds, Murray & Deeg, Columbus, for plaintiffs-appellees.
    Richard C. Addison, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus, Ohio, awarding the plaintiffs the balance due on an oral contract for the laying of a certain number of cement block. The record discloses that the defendant, George Sheaf, is a general contractor engaged in the construction of commercial buildings; that he had a contract with Otterbein University, for the construction of a stadium at Westerville, Ohio; that Benham, Richards & Armstrong were the architects who drew the plans and supervised the construetion; that a superintendent of the defendant employed the plaintiffs to lay the concrete block required at the rate of sixteen cents per block; that the plaintiffs were furnished a blue print showing the work to be done; that after the plaintiffs had laid 2591 blocks the work was stopped because the architects refused to accept a substantial part of the work for the reason that it did not meet with their approval. The record discloses, however, that the contract of employment was silent as to any such requirement. It is urged by the appellant that since this requirement was in the general contract it became a part of the contract between these parties by implication, as the plaintiffs knew that the plans and specifications had been drawn by an architect. The answer, after pleading a general denial, set forth the affirmative defense that the work was to be acceptable to the architects and that it was not in certain respects.

The first error assigned is that the court erred in the rejection of evidence offered by the defendant. On direct examination the defendant was asked concerning his general contract with the University. To this question an objection was sustained, the Court confining the issues to the contract between the plaintiffs and the defendant. The Court did not err in this ruling as the general contract had no relation to the contract between the parties to this action. We do not think it became a part of the plaintiffs’ contract by implication as urged by the defendant. Where a contract is silent in regard to a matter of much importance to both parties it is not likely to be presumed .that it was intended to imply an agreement upon that point. The implication should clearly appear from the whole contract. 9 O. Jur. Sec. 174, p. 400. Under the plaintiffs’ contract they were required to perform the work in the common and usual way at the place where the work was to be done. It must be done with the skill which is usual in the block-laying industry in a workmanlike manner. 9 O. Jur. Sec. 208, p. 437. Whether or not these requirements were met was a factual question for the trial court and which it resolved in favor of the plaintiffs.

We find that there is ample evidence in the record to support the court’s ruling. The court did not err in permitting Thurman Cordle, one of the plaintiffs, after being properly qualified, to testify that the work was done in the “standard way of laying block.”

We find no error in the record, and the judgment is affirmed.

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


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    HAROLD FURNACE COMPANY, Plaintiff-Appellee, v. JOHNSON, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22064.
    Decided February 26, 1951.
    Wyner & Wyner, Cleveland, for plaintiff-appellee.
    Frank C. Lyons, Cleveland, for defendants-appellants.
    (DOYLE, J, of 9th District sitting in place of McNAMEE, J, of the 8th District.)
   OPINION

Per CURIAM:

In this appeal on questions of law, the record shows that the plaintiff, an Ohio corporation, filed its petition in the Municipal Court of Cleveland against Doris Alexander, William and Ruth Johnson for the sum of $331.19, plus interest, being balance claimed to be due for a furnace installed by plaintiff in a residence occupied by Doris Alexander as a tenant but owned by the defendant, Ruth Johnson. The trial court rendered judgment against all three defendants in the sum of $404.01 and costs. From this judgment only the defendants, William and Ruth Johnson, have perfected an appeal to this Court, assigning eight grounds of error which we deem unnecessary to discuss in detail.

The undisputed evidence discloses that defendant; Ruth Johnson, was the owner in fee of the property at No. 9117 Blaine Avenue at the time of the installation of the furnace and that the defendant, Doris Alexander, was a tenant on a month to month basis, who gave to plaintiff a written order or contract for the installation of the furnace and made all necessary arrangements in connection therewith. There being no privity of contract between the plaintiff and the defendants, Johnson, the plaintiff predicated its claim for recovery against the owner upon two theories of law: (1) implied agency, and (2) unjust enrichment.

We have examined the record very carefully, and we find no evidence from which an inference can be drawn to support the claim of an implied agency. On the contrary, there is nothing in the record to contradict the evidence of the appellants that the furnace was installed by the plaintiff at the instance of the defendant, Alexander, without the knowledge and consent of the appellants, and that the plaintiff sought to hold appellants responsible only after the defendant, Alexander, defaulted on her contract after she had made payments to plaintiff on account in the sum of something over two hundred dollars.

As to the theory of unjust enrichment, or quasi-contract advanced by plaintiff, it is claimed that the defendant, Ruth Johnson, derived benefit from the installation of the furnace when later she sold the home in 1949 and allegedly retained all of the proceeds of the sale for herself.

We think this claim is completely negatived by the testimony of plaintiff’s own witness, Melnick, who testified that the defendant, Ruth Johnson, told him they “had no business putting it (the furnace) in,” and that they should take it out and put her own furnace back in. The plaintiff admittedly failed to take advantage of this proffer. This corroborates the testimony of the defendant, Johnson, completely and therefore the claim of unjust enrichment by way of quasi-contract is wholly lacking in evidentiary support.

The judgment is therefore reversed as being contrary to law and final judgment is rendered for the appellants.

Exc. Order see journal.

SKEEL, PJ, HURD, J, DOYLE, J, concur.


author: By MILLER, PJ:

text:
    HEMMELGARN, Plaintiff-Appellee, v. BAILEY, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 683.
    Decided December 1, 1950.
    Marchal & Marchal, Greenville, for plaintiff-appellee.
    Jesse K. Brumbaugh, Wilbur D. Spidel, Greenville, for defendant-appellant.
   OPINION

By MILLER, PJ:

This is a law appeal from the judgment of the Court of Common Pleas awarding the plaintiff damages for injuries arising out of a collision between a motor vehicle and a bicycle being propelled by an attached motor known as a “Whizzer.” The answer of the defendant denied the allegations of negligence set forth in the petition and alleged that the collision was due to the negligence of the plaintiff in four particulars, 1, 2 and 4 not in issue here, to-wit:

(3) In operating his Whizzer Bike at a rate of speed and in such manner as would not permit him to bring the same to a stop within the assured clear distance ahead.

At the close of all the evidence the plaintiff interposed a motion to take from the jury the third specification of negligence, which was sustained. This ruling of the court, the appellant contends, was erroneous.

The facts pertinent to the question raised on this assignment disclose that the plaintiff was proceeding in a southerly direction on Sycamore Street in the City of Greenville on his Whizzer bicycle at a speed of approximately ten to fifteen miles per hour; that Sycamore Street is intersected on its west side by an alley, out of which the defendant was backing his automobile; that the view of the defendant in the direction from which the plaintiff was coming was obstructed by automobiles parked parallel with the curb; that the defendant’s auto was backed into the path of the plaintiff’s Whizzer bicycle, although it came to a stop before reaching the center of Sycamore Street. The defendant testified that he saw the plaintiff approaching when he was 25 to 30 feet away and stopped his automobile immediately. The interpretation we have placed upon the evidence is taken from its most favorable aspect towards the defendant. There is evidence in the record that the defendant’s car was still in motion at the time of the impact, which, however, cannot be considered at this time. We are of the opinion that the trial court properly sustained the motion. The assured clear distance rule does not apply when a discernible object obstructing the path or line of. travel suddenly enters within the clear distance ahead and into the path or line of travel, suddenly cutting down or lessening the assured clear distance ahead, without the fault of the plaintiff. Reeves v. Frank Co., 76 Oh Ap 1. A quite similar state of facts is found in the case of Bohn v. Deyo, 66 Oh Ap 500, syllabus 1 of which provides:

“1. The ‘assured clear distance ahead’ provision of §12603 GC, is not applicable to a motorist proceeding in a lawful mánner on a main thoroughfare and colliding with a motor truck being backed out of a private driveway onto such thoroughfare without yielding the right of way, in violation of §6310-29 GC, the motorist not being required to anticipate such a violation by the truck operator or to change his course until aware thereof.”

Another error assigned is that the court improperly submitted certain special instructions to the jury. The pertinent facts on this question reveal that the' plaintiff was a minor, seventeen years of age. Among the special charges requested was charge No. 7, which reads as follows:

“I charge you that children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

The appellant urges that this charge does not correctly state the law, that the motor driven bicycle is a motor vehicle under §6307-2 GC; that the appellant in the use of the highway has a right to assume that all other persons who use the highway for the operation of motor vehicles are required to use the same degree of care and that the legislative provisions for the regulation of traffic should have uniform application. We agree with the general proposition that the legislative provisions for the regulation of traffic should have uniform application, but are of the opinion that in the determination of any violation where the statutory obligation is not definitely fixed, the degree of care required may differ between adults and minors. The appellant has cited no authority which sustains his position, but on the contrary we find numerous cases to the effect that ordinary care in the case of a child is generally different than in the case of an adult. The leading case on this question seems to be that of The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo, 103 Oh St 471, the first syllabus of which provides:

“1. Children are not chargeable with the same care as persons of mature years. Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education and experience, of ordinary care and prudence, are accustomed to exercise under similar circumstances.”

Also in 29 O. Jur. 560, Section 103, it is said:

“Although children are required to exercise ordinary care to avoid the injuries of which they complain, such care, as applied to them, is that degree of care which children of the same age, education, and experience, of ordinary care and prudence, are accustomed to exercise under the same or similar circumstances. Children constitute a class of persons of less discretion and judgment than adults, of which fact all reasonably informed men are aware. Hence, ordinarily prudent men, reasonably expect that children will exercise only the care and prudence of children, and no greater degree of care should be required of them than is usual under the circumstances, among careful and prudent persons of the class to which they belong.” See also cases cited.

We are therefore of the opinion that the court did not err in giving special charge No. 7.

We have examined all of the other assigned errors and are of the opinion that none are well grounded. Since we find no error in the record the judgment will be affirmed.

HORNBECK and WISEMAN, JJ, concur.


author: By SKEEL, PJ.

text:
    DE MARCO, Plaintiff-Appellee, v. LUCAS et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22149.
    Decided May 28, 1951.
    Ralph E. Johnson, for plaintiff-appellee.
    Frank G. Mercer, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment of the Municipal Court of Cleveland in favor of the plaintiff.

The plaintiff’s action was based on negligence. The plaintiff’s automobile was struck and damaged to the extent of $638.19 by a truck being driven by Roy H. Lucas. The truck belonged to this appellant, Arthur Fleming. The plaintiff joined Lucas and Fleming as defendants, alleging that at the time of the accident, the said defendants were engaged in a joint adventure or enterprise.

The case was tried upon a stipulation of facts, it being agreed that the collision took place as set forth in plaintiff’s petition and that the damages were $639.19, $50.00 of which represents the damage of the plaintiff, DeMarco, and the balance to the defendant, The Automobile Insurance Company, insurer of the DeMarco automobile.

The stipulations of fact further provide in part:

“7. It is agreed that on or about the 2nd day of January, 1946, defendant, Roy H. Lucas and defendant, Arthur Fleming, d. b. a. Magic Cleaners and Decorators, entered into an agreement, in writing, as follows:

“Magic Cleaners & Decorators, hereinafter called contractor, and Roy Lucas, hereinafter called sub-contractor, do contract as follows:

“1. Contractor agrees to secure general cleaning, decorating and repair work as a general contractor.

“2. Sub-contractor agrees to perform that part of the contract assigned to the sub-contractor.

“3. Contractor agrees to pay to sub-contractor 40% of the contract price for the work accomplished.

“4. The contracting parties are not employer and employee and nothing herein shall be construed as creating such relationship between the contractor and sub-contractor. The sub-contractor may adopt such arrangements as he desires with regard to the details of the work, the personnel of his workers and the hours during which the work is performed. Provided, however, that the work shall be done by the subcontractor in such manner as will be consistent with the achievement of the result contracted for at the time herein agreed upon. * * *

“8. It is agreed that defendant Lucas, acted pursuant to the terms of the said Contractor for not more than thirty days during the entire calendar year of 1948 and that no withholding tax was deducted from compensation paid by defendant, Fleming, to defendant, Lucas, nor were any sums deducted from such compensation for Social Security Tax.”

It was further stipulated that on May 3, 1948, Lucas called at the place of business of Fleming, looking for work and was advised that there was work on East 147 Street but unless Lucas could furnish the transportation to get the materials to the job, it could not be done because Fleming had no way of furnishing such transportation. It was thereafter agreed that the defendant, Lucas, could borrow a truck belonging to Fleming that was not then in use for this one particular purpose only and that the collision took place while Lucas was going to the job.

It was further agreed “that the defendants were operating between themselves under the contract as set up in paragraph 7, that defendant Lucas had no financial or other interest in the Magic Cleaners and Decorators, and that neither of the defendants had any control over the other in the performance of any contracts for work as obtained by defendant Fleming.”

Upon the above facts the court entered a judgment against both defendants.

The defendant claims the following errors:

1. The judgment is manifestly against the weight of the evidence.

2. The judgment is contrary to law.

3. There is no evidence upon which to base a judgment for plaintiff appellee against the defendant, Arthur Fleming, appellant.

Inasmuch as there are no questions of fact in dispute our only question is as to whether or not the plaintiff, from the undisputed evidence, has made out or established that at the time of the accident in which plaintiff’s automobile was damaged, through the negligence of Lucas, Lucas was then engaged and acting in furtherance of a joint adventure with this appellant.

A joint adventure has not been clearly defined in the few cases that have dealt with the question. Generally, it is said to be established when two or more persons join their efforts, that is, their money, property, services or time,, in seeking to accomplish a single purpose to their mutual benefit without creating a partnership. One of the indispensable elements of such a relationship is the right of joint proprietorship or control. In American Jurisprudence, Vol. 30, Parag. 11, Page 682, dealing with the subject of Joint Adventures, the author says:

“A joint proprietary interest and a right of mutual control over the subject matter of the enterprise or over the property engaged therein is essential to a joi::t adventure. Particularly is this true with respect to negligence cases in which the element of joint adventure is present; in that class of cases, unless each has some voice and right to be heard in the control or management of the enterprise, a joint enterprise is not deemed to exist.”

Also, in 38 American Jurisprudence, Page 924, Sec. 237, we find the following:

“Parties cannot be said to be engaged in a joint enterprise within the meaning of the law of negligence, unless there is a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management. No legal distinction exists between the phrases ‘joint enterprise’ and ‘the prosecution of a common purpose.’ ”

Also, in the case of Darman v. Zelch, 186 A. 21, 110 A. L. R. 826 paragraph 3 of the headnotes provides:

“3. To constitute a joint enterprise there must be a community of interest between the parties in the purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other in connection therewith.”

The contract between Lucas and Fleming provides that Lucas should have full control of the work sublet to him. It must be further observed that by the agreement there is no community of interest between the parties in the complete enterprise. Lucas agreed to do the labor for forty percent of the contract price. Whatever financial gain or loss incurred in that part of the work was his responsibility alone and by the terms of his contract he could neither benefit nor could he suffer a loss from the whole undertaking. The contract therefore did not constitute a joint enterprise or adventure.

Our attention is called to the case of Bennett v. Refining Co. 144 Oh St 139, wherein the supreme court in the third paragraph of the syllabus said:

“3. A joint adventure is a special combination of natural or artifical persons who, without creating a partnership combine their money, property or time, or all of them, in the conduct of some particular line of trade or some particular business deal for profit.”

This case is to be distinguished in that in the instant case, by the express provisions of the contract, the parties did not “combine their money, property or time, or all of them in the conduct of * * *” the business contemplated by such contract.

For the foregoing reasons, the judgment of the tr-ial court is reversed and final judgment is entered for defendant, Arthur Fleming.

Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


text:
    HOWELL, Plaintiff-Appellant, v. OCEAN ACCIDENT AND INSURANCE CORPORATION, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4375.
    Decided February 10, 1950.
    Benjamin F. Hughes, Columbus, for plaintiff-appellant.
    Joseph & McClelland, Robert L. Ratchford, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Franklin County, Ohio, dismissing the amended petition of the plaintiff in which she sought to recover $12,500.00 in damages for personal injuries suffered when her automobile collided with another automobile.

In her amended petition she alleged that she was insured by the defendant company and that one of the coverages in the policy was “bodily injury liability” and that the limit of the liability was $10,000.00 for each person and $20,000.00 for each accident.

The defendant filed a motion to make the amended petition definite and certain by setting forth the relationship which existed between the plaintiff and the defendant company and by setting forth fully the coverages upon which she relied under the policy. The purpose of the motion was to require the plaintiff to plead sufficient facts from which it could be determined whether the defendant company was obligated to pay for personal injuries sustained by the plaintiff. The amended petition did not state the type of policy, to whom or under what circumstances the amounts were payable.

Inasmuch as the plaintiff sought to recover for injuries sustained through accidental means, the amended petition was faulty in that it did not allege sufficient facts which would give rise to a recovery on that ground. It is apparent that the plaintiff was attempting to recover on a policy of insurance which indemnified the plaintiff against the loss sustained by a third person by reason of the plaintiff’s neglect.

The motion was sustained and the plaintiff electing not to plead further the amended petition was dismissed. We can find no error in the record prejudicial to the rights of the plaintiff.

Judgment affirmed.

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


author: By HURD, J:

text:
    ARMSTRONG et, Plaintiffs-Appellees, v. DUFFY et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 688.
    Decided June 11, 1951.

      Tobin & Tobin, Lisbon, for plaintiffs-appellees.
    Brookes, Lynch & McDonald, East Liverpool, for defendants-appellants.
    (SKEEL, PJ, HURD, J, THOMPSON, J, of the 8th District sitting by designation in the 7th District.)
   OPINION

By HURD, J:

This action in equity for injunction and equitable relief comes before this court as an appeal on questions of law and fact from a judgment rendered by the common pleas court of Columbiana County against the defendants, James Duffy, Charles Jordan and the National Brotherhood of Operative Potters, permanently enjoining said defendants from enforcing certain penalties imposed upon the plaintiffs individually as punishment for alleged violation of the union constitution and by-laws. The trial resulting in the imposition of punishment, was conducted by the 55th (July 1949) National Convention of the National Brotherhood of Operative Potters, an Ohio corporation, of which the individual plaintiffs and defendants are members. The penalties against which relief is sought consist of (1) a fine of $50.00 each, and (2) a suspension of the right of each to hold office within the union for a period of ten years.

The nature of this appeal brings the case before us for trial “de novo,” it having been stipulated by the parties hereto that the record and evidence made and presented in the trial court shall be received and considered by this court as evidence on this appeal.

Fundamentally, the case involves the question of union discipline of individual members of a union, and the jurisdiction of a court of equity to grant relief from alleged oppressive measures by invocation of the injunctive process.

For brevity and convenience, the individual parties will hereafter be designated as plaintiffs and defendants as they appeared in the trial court. The corporate defendant, National Brotherhood of Operative Potters, will be referred to as N. B. O. P., or simply as the National Brotherhood.

The National Brotherhood is, in fact an International Union, originally organized in 1891 and incorporated under the laws of Ohio in 1894. It is the parent organization which is composed of 114 local unions located in the United States and Canada, all affiliated with the American Federation of Labor, which, at the time of trial had a membership of approximately 28,000 skilled and unskilled craftsmen employed in the pottery, china and "sanitary ware industry.

The defendant, James Duffy, is now and has been for many years president, and the defendant, Charles Jordan, is now, and has been since 1945, the secretary-treasurer of the National Brotherhood.

The National Brotherhood is a democratically organized union with a code of regulations and by-laws which they have termed a constitution. As these by-laws and regulations are changed from time to time, the constitution is amended accordingly, provided that the designated procedural steps are properly taken.

In February, 1948, a suit was filed in the common pleas court of Columbiana County, Ohio, entitled Finlay et al v. Duffy et al, No. 35918 (OA 57 Abs 442, OS No. 32413, 154 Oh St 390, MCO and Dis.), by all of the plaintiffs in this action, with the exception of E. C. Armstrong, against the defendants Duffy and Jordan, both individually and in their respective official capacities, dealing with certain salary increases in which action an injunction was prayed for against said individuals and the National Brotherhood on the ground that the officers had taken salary increases in a manner not authorized by the constitution and by-laws. Without describing the proceedings of that case in great detail, suffice it to say that after extended hearings, the trial court ruled in favor of the plaintiffs and granted the injunction, holding with the plaintiffs that the salary increases which had been taken by the president and secretary-treasurer of the National Brotherhood were unauthorized under the constitution and the proceedings had thereunder, and on June 26, 1948, entered an order enjoining the defendants, Duffy and Jordan, from taking or accepting said salary increases. As a part of the same case, as appears by the record, the common pleas court suggested in its opinion that the injunction would be dissolved if an election was held and salary raises were approved by the general trade of the National Brotherhood in accordance with its constitution. Within a few days thereafter the 54th Convention (1948) of the N. B. O. P. met in Atlantic City, New Jersey, and voted salary increases to the president and secretary-treasurer subject to the approval of the membership to be determined by a referendum vote which was ordered to be taken by the general trade in August, 1948, at which time the defendants filed a motion for a new trial in the original case, stating that a vote was being taken. This was done in pursuance of the statement contained in the opinion of the trial court.

The result of said voting was announced in September, 1948, showing that the salary increases were approved by a majority of 221 votes for Duffy and 241 votes for Jordan. Thereafter, the plaintiffs, Whippier and Finlay, together with two other members of the National Brotherhood who were not in this particular suit, discovered upon investigation that fraud had been committed in the returns reporting the votes of Local 191 of Hamilton, Canada. This discovery was made some time during the month of October, and an investigation disclosed that the president of Hamilton Local 191 had falsified the return of the votes by arbitrarily adding 300 votes in favor of the salary increases for the president and secretary respectively, and by arbitrarily adding to the number of votes not in favor by 50 votes each respectively. This fraud was later verified by President Garvin Wilson of Hamilton Local 191 who, by affidavit, admitted that he himself had made the fraudulent return. With the correction of the returns of the vote in Local 191, the entire result of the referendum was changed so that the record then showed a majority of the votes were against the salary increases of the officers, Duffy and Jordan.

On November 4, 1948, L. A. Finlay and Norman Whippier, two of the plaintiffs in case No. 35918, made an affidavit based upon the fraudulent return of Local 191, stating in substance that the vote published by the national secretary was incorrect and that the vote of the trade actually was against the national president and secretary receiving the salary increases and stating that the original election returns and envelopes were important in determining the correctness of the vote and that this valuable evidence was in the hands of the defendant, Charles Jordan, and certain members of the canvassing committee. A motion was then filed on behalf of plaintiffs by their counsel, for an order directing the secretary and the members of the canvassing committee to impound the ballots and envelopes. The court granted said motion and enjoined the defendant, Jordan, individually and as national secretary of the National Brotherhood and the members of the canvassing committee of the National Brotherhood from destroying any of the election returns together with the original envelopes and ordered' the ballots impounded under order of the court.

Thereafter, on Nov. 22, 1948, the canvassing committee received a registered letter signed by Duffy as president and Jordan as secretary, protesting the votes of certain other local unions, because they had not voted from the rolls. The canvassing committee of the National Brotherhood met on Dec. 2nd, 3rd, 6th, 10th and 11th and heard protests on the vote of eleven other locals and made an order voiding the votes of seven of said locals on the grounds that they had not voted from the rolls, with the result that the number of votes less than the majority in favor of the salary increases which had resulted from the discovery of the fraud in Hamilton Local, was again changed so that finally the votes in favor of the president’s increase in salary was 4233 and opposed, 3668, and in favor of the secretary’s increase 4188, and opposed 3591.

Thereafter defendants filed a motion to vacate the judgment previously entered and to dissolve the injunction and were given leave to file a supplemental answer. The trial court overruled defendants’ motion to vacate the injunction and overruled the motion for new trial. The defendants then upon leave filed a supplemental answer alleging a referendum vote of the trade favorable to themselves to which plaintiffs filed their reply traversing the allegations of the supplemental answer. Upon trial the court found that the action of the canvassing committee above described was “arbitrary and unreasonable for the reasons that said locals voted as they always had voted in the past and received no different instructions than they ever had and had no chance to correct their votes.” Thereupon the trial court restored the votes of said seven locals which had been invalidated by the canvassing committee and found that the votes of the referendum were finally as follows:

Opposed to the president’s increase 4678
In favor of the increase 4321
Opposed to the secretary’s increase 4597
In favor of the increase 4260

The trial court having found that the referendum was opposed to the salary increases of the president and secretary, continued the injunction against them and rendered an opinion setting forth the reasons therefor on April 11, 1949. Thereafter the judgment of the common pleas court was appealed to this court. A decision was rendered dissolving the injunction, primarily for the reason that the question presented involved the internal policy of the organization and that the salary paid to the officers was not, per se, a property right of the members thereof. See Finlay, et al v. Duffy, et al, 57 Abs 442; 94 N. E. 466. At page 446, Abs, Skeel, J., speaking for this court, said:

“The basic question here involved comes clearly within the sphere of the internal management of the Brotherhood. The compensation of the national officers in no wise effects a property right of any of the members. The continued course of conduct upon this or any other subject of internal policy comes under the complete control of the membership, either by action at the convention of the members or by a referendum. The record discloses that after the amendment to Sec. 75 of the constitution of 1941 by the 1944 convention, the subject of the change in compensation by the national officers came up for consideration in each of the conventions of 1946, 1947 and 1948 and in each instance the opposition to the basic increases granted by the convention of 1944 and those subsequently given because of wage increases obtained by the trade generally, failed to obtain the support of the membership. If, in fact, the desire of the Brotherhood is to revoke on the one hand or approve on the other, what has heretofore been done on this subject, the convention of 1950 has full power and authority to make whatever order seems just, no matter what this court does in the instant case.”

The Supreme Court overruled a motion to certify the record and dismissed the appeal as of right. Finlay, et al v. Duffy, et al, 154 Oh St 390.

Referring now to the 54th National Convention (1948) the record shows that on July 27, 1948, the delegates adopted the following resolution:

“RESOLVED, that any member or members of the N. B. of O. P. attempting to, or actually resorting to court action in an attempt to redress an actual or so-called grievance against any member of the N. B. of O. P. or an act of the convention or any authorized agent or agents thereto, without first exhausting every possible effort to redress the grievance under the laws and constitution of the N. B. of O. P. shall be considered as in violation of the laws of the organization and dealt with under appropriate laws of the N. B. of O. P.”

It will be noted that this resolution was adopted approximately five months after the litigation which we have described at some length had been commenced in common pleas court. Thereafter, on June 20, 1949, all of the plaintiffs herein, except E. C. Armstrong, received registered letters stating substantially as follows:

“June 20, 1949.

Dear Sir and Brother:

You are hereby summoned to appear in the National Con-' vention June 27, 9:30 A. M. Atlantic City Auditorium, Atlantic City, N. J., for making issue in court the salary referendum of president and secretary-treasurer of September 1948, before having exhausted appeal provisions as provided in our Constitution. You are to assume all expenses in connection with your getting to Atlantic City. If proven guilty you will not be reimbursed for any expense whatsoever. If adjudged not guilty, the N. B. of O. P. will pay expenses.”

Similar letters had previously been written to the same general effect that the plaintiffs would be brought to trial before the National Convention for “takihg to court matters which should be disposed of within our organization.” It should be borne in mind that the plaintiff, E. C. Armstrong, was not a party to the original action and did not receive any of these notices. However, Armstrong was notified on the second day of the convention where he was present as a delegate from local 124, that he was charged with violation of the constitution and was to be tried with the other plaintiffs. '

Plaintiffs, Johnson, Jones and McDaniels were not delegates to the convention and did not appear there. The plaintiffs, Whippier and Finlay, were present, and in substance stated to the convention that they believed the convention had no right to try them and stated that the defendants, Duffy and Jordan, by filing a supplemental petition asking the court to dissolve the injunction in the original action, had forced the issue in the court proceedings which required them to file a reply in order to make up the issues for trial on the merits.

The convention proceeded to try the plaintiffs and on July 2, 1949 found all of the plaintiffs, whether present or not, guilty and on July 5, 1949, imposed the punishment above described, the serious part of which was to suspend their right to hold office for a period of ten years.

Thereafter, the plaintiffs filed their petition in the instant case to restrain the defendants from enforcing the penalties against them. The trial court in an exhaustive opinion containing a detailed statement of the history of the litigation and the facts in the case, found that plaintiffs herein were amply justified in the procedural steps taken by them; that the plaintiff, E. C. Armstrong, was not a party to case No. 35918; that the case being in court, no one had a right to interfere with the judicial process until the matter in issue was finally determined by the court, and further that the proceedings for trial in the convention were not in accordance with due process and entered a judgment enjoining the defendants from enforcing or attempting to enforce any of the penalties imposed upon the plaintiffs by the convention of 1949.

The foregoing is a sketchy outline of the factual situation. For a more detailed history and factual statement, attention is directed to the opinion of the trial court to be found in the record, pages 930 to 982 inclusive.

Before proceeding to a discussion of the general propositions of law involved, we wish to note that it is admitted that one plaintiff in this case, E. C. Armstrong was not a party to the action complained of by the defendants. Further he was not apprised of any charges pending against him until the second day after he arrived at the convention as a delegate from local 124. Charges against him were identical with those lodged against the other plaintiffs and the penalties against him were the same.

The opinion of the trial court contains an excerpt from the testimony indicating that Duffy stated to Armstrong that his crime was being seen in the company of two of the other defendants and at page 292 of the record the following appears in the cross-examination of Armstrong by defendants’ counsel:

(To Armstrong)

"Q. You had been involved before that?

“A. In what?

“Q. All of these affairs in bringing this action in the first place?

“A. Why, no, I was never involved in it.

“Q. Didn’t you testify a few minutes ago that you were in several meetings with them (the other plaintiffs) on this subject?

“The Court: Am I to understand, Mr. Brooks, that that is a crime? I would like to know that. Is it supposed to be against the laws of the Brotherhood for some members to get together and talk over something they feel is wrong, of the officials of the Brotherhood? I would like to know that.

“Mr. Brooks: I believe if the purpose of the meeting is destructive of the organization that it is definitely against the laws of the Brotherhood.”

Because the plaintiff, E. C. Armstrong, admittedly was not a plaintiff in the original suit and therefore did not resort to court action, we think it unnecessary to discuss his case further, except to state that the trial court was eminently correct in enjoining the defendants from imposing punishment by way of fine and the penalty of suspension from holding office in the union for a period of ten years. This court so holds and as to him a journal entry may be entered accordingly.

Coming now to a discussion of questions of law in respect to the other defendants, it appears to us that two questions are involved.

1. In view of the fact that the amendment to the constitution and by-laws prohibiting members from resorting to court actions against other members and officers for the redress of grievances was adopted some five months after the suit had been commenced, could the National Brotherhood on the basis of such ex post facto legislation visit punishment and impose penalties for an alleged violation of such an amendment?

2. Such a suit having been commenced prior to the adoption of the restrictive by-law, is the union empowered thereby to visit punishment and impose penalties because of the further proceedings taken and carried on in the prosecution of said suit, after the adoption of the amendment?

We shall consider these questions in the order presented.

Proceeding to the first question, the weight of authority is in favor of the proposition that the union constitution and by-laws constitute a contract between the members thereof and the union. It follows, therefore, that a member of a union cannot be guilty of the violation of a provision of a contract which was not in existence at the time the alleged offense was committed. The weight of authority also is to the effect that a member of a union has a property right in the trade in which he is engaged and in his membership in a union with its ensuing benefits.

In the instant case, the right of the plaintiffs to be candidates for office and the right to hold office are very valuable property rights which a court in the exercise of its equitable jurisdiction is bound to protect unless the rights are forfeited by conduct prohibited by the organic law of the union. Further, according to the constitution, if they failed to pay the fines they would be deprived of other substantial benefits as well, all involving property rights.

We think it a sound proposition of law that an organization, whether a labor organization or a mutual benefit association, or any voluntary association which is governed by a constitution and by-laws, cannot visit punishment upon a member for any acts or conduct which were not violative of the constitution and by-laws at the time that such acts were committed. We think this proposition has particular application where members invoke the judicial process by appeal to a court of equity for redress of grievances.

We do not mean to state that members of a labor organization may not be bound by proper constitutional provisions requiring them first to exhaust their remedies within the organization before resorting to court action for redress of grievances. Indeed this is a fundamental proposition of law which is recognized in respect of all voluntary associations, but, in the absence of such provisions, all citizens are free to invoke the judicial process without the risk of suspension or expulsion. Courts are created by organic law and are empowered to administer justice according to law, free from interference by any person or group of persons whether well-intentioned or otherwise. To hold otherwise would be a denial of due process. We conclude, therefore, that the first question presented above must be answered in the negative and that the plaintiffs were fully within their rights in commencing the suit against the defendants in February, 1948.

Proceeding now to a consideration of the second question posed above, it is argued by defendants that the plaintiffs were tried in the 1949 convention, primarily because after having discovered the fraud perpetrated by the president of the Hamilton local 191, they did not exhaust their remedies within the organization but instead filed an affidavit with the court delineating their claim of fraud together with a motion to enjoin Jordan, individually and as secretary of the National Brotherhood and the members of the canvassing committee from destroying the election returns and original envelopes. In other words it is claimed that the gravamen of their offense consisted of calling that fact to the attention of the court. It should be noted that this motion was allowed by the court and in pursuance of the court order the ballots were impounded under the direction of the court. Admittedly this occurred after the adoption of the resolution, amending the constitution and by-laws prohibiting any members of the National Brotherhood from resorting to court action to redress an actual or “so-called” grievance without first exhausting every possible effort to redress the grievance under the by-laws and constitution of the organization.

It should be noted, however, that when the proceedings complained of were had, the case was still pending in common pleas court. Likewise the parties and subject matter were still under the jurisdiction of the court. It is to be noted also that the defendants, themselves, invoked the jurisdiction of the court in the same proceedings after the adoption of the restrictive amendment. The record shows that on December 16, 1948, defendants were granted leave, at their request, to file a motion to vacate the judgment and to dissolve the injunction and to file a supplemental answer. Their supplemental answer was filed Dec. 17, 1948. The court having overruled defendants’ motion to vacate the judgment and dissolve the injunction and having overruled the motion for new trial, plaintiffs filed their reply to defendants’ supplemental answer and the case came on for trial during the latter part of March, 1949, and the first part of April thereafter.

It appears to us that the suit having been properly instituted in the first instance, at a time when there was no provision in the constitution restricting such action, the parties were entirely within their rights in prosecuting the suit to a conclusion. This is particularly true when defendants continued to recognize the jurisdiction of the court for their own benefit while attempting to deny the jurisdiction of the court to the plaintiffs. The action of the defendants in moving to vacate the injunction on the ground that the vote of the trade was favorable to the defendants’ contentions, was a submission by them to the jurisdiction of the court. It is axiomatic that fraud vitiates everything it touches, and when the plaintiffs discovered the fraud in the returns from the Hamilton local they had the legal right to direct the court’s attention to the fraud by proper pleadings. This was properly done by motion and affidavit. Then when the defendants being dissatisfied with the result, proceeded through the agency of the canvassing committee to recanvass the votes of certain local unions and made a new report invalidating the report of these locals, it was merely in pursuance of a right of due process for the plaintiffs to file a reply traversing the allegations of the supplemental answer of defendants which again raised the issue as to the validity of the votes of the trade. The trial court determined the issue favorably to the plaintiffs and we must assume that the court acting as a court of equity granted to all parties to the litigation the right of due process to which they were entitled by constitutional guarantees. The record so shows.

We think that the position of the defendants is untenable when they argue that although the suit was commenced before the restrictve by-law was enacted, the plaintiffs lost all right by reason of said enactment to have issues made on pleadings ultimately determined by the court. To hold otherwise, would we believe place the stamp of approval upon a course of action which would constitute an unwarranted interference with the due and proper administration of justice.

In view of this factual situation here presented we conclude that the defendants were without authority to try the plaintiffs and to punish them merely because they, through counsel, continued to pursue their rights and to prosecute the action to a conclusion which had been commenced prior to the time of the adoption of the restrictive provision of the constitution.

There is abundant authority for the conclusions herein reached. An interesting case in point is found in the case 'of LoBianco v. Cushing 117 N. J. Eq. 593, wherein it is specifically held in a well-reasoned opinion that a constitution and bylaws of an association cannot be made retroactive in effect upon established rights. This case was decided Feb. 23, 1935, the syllabus of which reads as follows:

“1. A man’s trade is property and his membership in a union, with its ensuing benefits, is a property right, which courts of law and equity are obliged to shield and protect.

“2. Sick or death benefits which are incidental to union membership are rights of property which equity will protect.

“3. A constitution and by-laws of an association cannot be made retroactive in its effects upon established rights.

“4. A member of a union is not required, in every instance, to exhaust the remedies within the union which are provided by the constitution and by-laws, before seeking relief in the courts. Where the question is purely social, he must exhaust all remedies set up within the association before he appeals to the court for reinstatement. If property rights are involved, in the absence of an express agreement to exhaust the remedies provided within the association, he may appeal to the court without having exhausted his remedies. If he has agreed to exhaust the remedies within the association, where property rights are involved, he is not so required if pursuing the remedies within the association would be futile, illusory or vain.

“5. A constitution and by-laws affording internal remedies within a union must be strictly construed and a member is not obliged to pursue a remedy of grace.”

For authorities supporting the same general principles see: Polin v. Kaplan, 257 N. Y. 277, decided by the Court of Appeals of New York, (Sept. 29, 1931) reversing the Appellate Division of the Supreme Court, opinion by Kellogg, J., concurred in by Cardozo C. J., Crane, Lehman and Hubbs JJ; Collins et al v. International Alliance of Theatrical Stage Employees etc. of U. S. and Canada, and Dominic Magilo et al v. Moving Picture Machine Operators, 119 N. J. Eq. 230, decided Dec. 24, 1935; Howard A. Leo, Appt. v. Local Union 612 International Union of Operating Engineers, decided by Washington Supreme Court (in banc) Nov. 25, 1946, 174 Pac (2d) 523, 168 A. L. R. 1440 and an extended discussion of this and related cases by annotation at page 1462 et seq.; Duzing v. Nuzzo (1941) 29 N. Y. (2d) 882 modified on other grounds 263 App. Div. 59, 31 N. Y. S. (2d) 849; 175 A. L. R. Ann. pages 1516 et seq. Also interesting articles: Vol. 64 No. 7, page 1049 et seq., Harvard Law Review, “Legal Limitations on Union Discipline” by Clyde W. Summers, Assoc. Professor of Law, University of Buffalo School of Law; Wisconsin Law Review (1948) pages 18 et seq, “Legal Protection of Civil Liberties within Union” by Jos. Kovner.

Under our system of jurisprudence, the courts are open to all citizens, and no person shall be deprived of life, liberty or property without due'process of law and any provision of any organization restricting its members from pursuing their rights must be strictly construed.

The Fourteenth Amendment to the Constitution of the United States, Sec. 1, provides:

“All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Article I, Sec. 16 of the Ohio Constitution states:

“Sec. 16. All courts shall be open, and every person, for an injury done him in his land, goods, person or reputation, shall have remedy by due course of law and shall have justice administered without denial or delay.”

Sec. 12866 GC reads as follows:

“Whoever corruptly, or by threats or force, attempts to influence, intimidate or impede a juror, witness or officer in any court in the discharge of his duty, or by threats or force obstructs or impedes or attempts to obstruct or impede the due administration of justice therein * * *” shall be punished as the statute provides.

In the absence of self-binding limitations by contract, the foregoing provisions of the federal and state constitutions and the above quoted section of the general code, insure the right of every citizen of this state to seek remedy by court action for any injuries done to him in his person or property and entitles him to have justice administered according to law without denial or delay, and any person who attempts to interfere unlawfully with this right is guilty of a violation of the fundamental principles guaranteed by constitutional and statutory provisions.

We hold therefore that the plaintiffs, having had the right, unrestricted by any constitutional provision of the organization, to resort to the courts in the first instance, had the further right to prosecute their suit to a conclusion, uninhibited by the ex post facto legislation adopted after the commencement of the suit, but during the pendency of the action. As a corrolary to this determination, we hold that the defendants were without authority to try the plaintiffs for resorting to court action and to impose the penalties of which complaint is herein made and that the attempted discipline of the plaintiffs was unduly oppressive and without warrant or justification in law and that a court of equity has full jurisdiction to grant relief.

For these reasons a decree will be entered as in common pleas court in favor of the plaintiffs permanently enjoining the defendants from enforcing the payment of the fines imposed upon the plaintiffs individually and from enforcing a suspension of the right of each to hold office within the union, and from visiting any punishment upon the plaintiffs for commencing and prosecuting to a conclusion the suit in the case entitled, Finlay et al v. Duffy et al, No. 35918 in the Common Pleas Court.

A journal entry may be prepared accordingly, setting forth this decree so that the same may be entered of record prior to the National Convention to be held in June, 1951.

SKEEL, PJ, THOMPSON, J, concur.


author: By HORNBECK, J.

text:
    STATE, Plaintiff-Appellee, v. LOVELY & BRELL LUMBER COMPANY, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4401.
    Decided June 7, 1950.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty Geni., Columbus, for plaintiff-appellee.
    Clinton D. Boyd, Middletown, for defendants-appellants.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment in favor of the plaintiff against the defendants on an award in favor of Floyd Shouse. The defendants did not carry Workmen’s Compensation insurance but it was the claim of the State that they were amenable to the Workmen’s Compensation Law because they had three employees regularly employed in their business, The award made to Mr. Shouse was upon his claim that he had received an injury by having one of his hands amputated while working on a planer in a lumber yard operated by the defendants, and that the injury arose out of and occurred in the course of his employment. The defense asserted that it did not regularly employ three men in its business and that the injury which Mr. Shouse suffered did not occur in the course of his employment.

The cause was submitted to a jury, the award of the Commission was offered, defendants then produced their testimony and the State its testimony. Upon submission of the cause to the jury it returned a verdict for the plaintiff in accord with the award made by the Industrial Commission!

Defendants moved for a judgment notwithstanding the verdict and that being overruled and judgment entered on the verdict, moved for a new trial, which also was overruled. On the appeal to this Court nine errors are assigned.

Except as to assignments Numbers 6 and 8 we are satisfied to say, without discussion, that they are not well made. Seven of them were discussed by Judge Leach in his opinion overruling the motion for judgment veredicto non obstante and with his conclusions and reasons therefor we are in accord. See also State v. Lift, 86 Oh Ap 396, Ohio Bar, May 15, 1950.

The sixth assignment of error is that the Court erred in refusing to give special request No. 4 before argument as requested by defendants, and the eighth, is error in overruling the motion of the defendants for a new trial. If No. 6 is well taken, so also is No. 8.

Defendants’ special instruction No. 4 is:

The Court charges you that if Floyd Shouse was injured while operating a planing machine, which was no part of his duties and against the express order or orders of his employer, the defendants are not liable and your verdict must be for the defendants.”

If this charge embodied a correct statement of the law applicable to a material issue in the causé it was prejudicial error for the trial judge to refuse to give it to the jury. Chesrown v. Bevier, 101 Oh St 282.

It is testified by Mr. Lovely, one of the partners, that Mr. Shouse’s duties were to keep lumber back, probably meant from the end of the planer opposite the cutting tool, to load, unload and truck lumber. Mr. John Brell, the other partner, said that when Mr. Shouse went to work for the partnership “he was hired for just one thing, trucking and hauling lumber, the planer costs, — too much' money is involved to havé somebody run it that didn’t know how to operate it”; that “he was never supposed-to operate the planer.” Miss Brell says that she heard her father shortly before the accident tell Mr. Shouse not to use the planer. The testimony of Mr. Shouse is in direct conflict with that of these witnesses.

It is the claim of the defendants that assuming the testimony of these witnesses for the defense to be true the jury could not find that Mr. Shouse’s injury arose out of or occurred in the course of his employment, because the operation of the planer was not one of his duties, that he was hired for a specific purpose which did not require the use of the planer and further that he was expressly instructed that he should not do so.

The plaintiff asserts that the charge is ambiguous in that it might be construed to mean that the Court was saying as a fact, that the operating of the machine was no part of plaintiff’s duties.

Appellee cites in support of the refusal to give the charge, Laudato v. The Hunkin-Conkey Construction Co., 135 Oh St 127, 1st syllabus:

“An employee who receives an injury while engaged in doing work he is employed to do, during the course of which he violates rules of his employer dealing with the method or manner of performing the work, will, notwithstanding such violation, be deemed to have had been injured in the course of his employment.”

The distinction between the cited case and the instant case is that here, upon the testimony of the defense, the employee when injured was not engaged in doing the work that he was employed to do. He' did not merely violate a rule respecting the use of the planer but he disregarded the duties which he was engaged to perform.

Judge Day in the Laudato case recognized the right of an employer to limit and define the scope of employment of his workmen, and at pages 130 and 131 makes this observation:

“A distinction must be drawn between rules which define the sphere of employment and those which merely direct the manner in which work within the sphere is to be done. ‘There are prohibitions which limit the sphere of employment, and prohibitions which deal only with conduct within such sphere. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent recovery of compensation. A transgression of the former class carries with it the result that the man has o-ore outside the sphere.’ 1 Honnold on Workmen’s Compensation, 390 et seq., Section 113.”

Here, if Mr. Shouse was employed only to truck and haul lumber, and there had been no change in the terms of the employment by permissive use, if he operated the planer he was outside of the sphere of his employment. We do not understand that “sphere of employment” would be so limited as to preclude such a holding. In the Laudato case, at the time of his injury he was engaged in the performance of a service clearly within the scope of his employment, but in so doing may have been violating a rule of his employer. Here, upon the testimony of defendant’s witnesses, the employee not only at the time of his injury was violating an express instruction but he also was engaging in an operation which did not arise from or occur in the course of his employment and was not contemplated in the contract of employment.

The latest applicable case in Ohio is Georgejakakis v. Steel Company, 151 Oh St 458. The employee, a common laborer, whose principal duty consisted of transporting materials in and about the plant and sweeping floors of his employer, during a temporary absence of an operator of a pressing machine, attempted to operate it. In so doing, the Angers of his left hand got caught in the machine and were severely injured. It is stated that some degree of skill and proficiency is required to operate a pressing machine as is the case with a planer. The court affirmed the judgment on a directed verdict for the defendant. Judge Zimmerman writing the opinion, page 459, says:

“Here, the claimant was a laborer whose duties in and about the industrial plant where he was injured were limited in scope. When he voluntarily, deliberately and without authority or necessity stepped out of the orbit of his employment by attempting to operate the pressing machine — an undertaking altogether foreign to the work he was hired to do — he engaged in a pursuit and exposed himself to a hazard not contemplated by his employment as a laborer. His behavior constituted a material deviation and departure' from his assigned tasks.”

Although Judge Hart dissented, he emphasized that,

“Here, the claimant assumed without direction or authority the performance of work for which he had not been specifically employed. Neither had he been forbidden to operate the machine.”

In this latter particular the instant case is stronger in its facts than the cited case.

Outside of Ohio an interesting case with facts analogous to ours is that of Dietzen Co. v. Industrial Board, et al., 279 Ill. 11, 116 N. E. 684. There are nine propositions in the syllabus. all of which are applicable to our question, and might well be quoted but to avoid undue length to this opinion we will not do so. The opinion is well written and can profitably be read.

The second syllabus of Industrial Commission v. Ahern, 119 Oh St 41, is that,

“Under Section 35, Article II of our Constitution, and the law enacted pursuant thereto, the phrase, ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer.”

Unfortunately for the defendants the charge, as framed, is ambiguous. The parenthetical phrase, “which was no part of his duties,” etc., if given by the Court, could have been construed as being an unqualified assertion that the operating of the planer was no part of the duties of Mr. Shouse and against the express order or orders of his employer. The charge should have clearly permitted the jury to resolve the disputed facts as an essential to a verdict for the defendants.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By WATTERS, J.

text:
    NEW YORK CENTRAL RAILROAD COMPANY, Plaintiff, v. A. SCHULMAN, INC., Defendant.
    Common Pleas Court, Summit County.
    No. 171178.
    Decided August 29, 1950.

      Loomis, Caris & Jones, Ravenna, K. H. Lundmark, Cleveland, Clarence Foust, Akron, for plaintiff.
    Harris, Sacks & Subrin, Sam Goldman, Akron, for defendant.
   OPINION

By WATTERS, J.

This matter was tried to the court upon written stipulations and agreed statements of fact filed herein on June 1, 1950. No testimony or other evidence was presented. Thereafter counsel for the parties submitted their argument on the facts and law by written briefs which the court has studied with great interest, together with the authorities cited.

The court will not herein reproduce the stipulation and agreed statement of fact filed herein, but refers to same and makes it a part hereof as though rewritten herein.

The sole issue, as the court views it, is whether the articles shipped via plaintiff carrier were “scrap rubber” or “gas masks” for tariff purposes.

It is admitted by both sides that the Interstate Commerce Commission has frequently held that the classification of a commodity for rate purposes cannot depend upon the use to' which it is ultimately put. This is on the theory that commodities are presumed to be used and useful for the very purpose for which they are made, and that there is no law preventing or prohibiting the owner from using it for its normal use.

In other words if the articles here shipped had a recognized commercial yglpe as gg,§ masks, then they should be so classified for tariff purposes, even though they were not subsequently put to that use.

The question then presents itself thus: Did the commodity shipped at the time tendered for shipment have a recognized commercial value as gas masks.

The government sold the commodity for a small fraction of the government’s purchase price as gas masks, and with the understanding that the title to the canisters, an integral part of the gas mask, was retained by the government. The government required that the canisters be returned to it after the rubber was scrapped or salvaged. The purchaser warranted that it would not sell the rubber at greater than the O. P. A. ceiling price as scrap.

Ordinarily the canisters were removed before shipment, but here a bond was put up guaranteeing removal thereof upon receipt at destination.

It was the strict War Department policy not to permit these articles to get out into civilian life as gas masks, and the purchaser gave bond to guarantee their non-use as gas masks. In this court’s opinion, that directive or prohibition was and is the law of the land, and had to be complied with, and forms a part of the shipping contract.

The government order was complied with, the canisters were removed, and the rubber salvaged as scrap.

Had the articles been lost, destroyed or damaged in transit, in the court’s opinion no claim could have been urged for their value as gas masks.

In the court’s opinion the burden is upon the carrier to establish that these articles fall under the classification of gas masks by a preponderance of the evidence, and that plaintiff has failed to do so.

Also in Ohio where there is a doubt as to the proper classification of a commodity for tariff purposes, that doubt is resolved in favor of the shipper and against the carrier.

See Saalfield Publishing Co. v. Public Utilities Commission of Ohio, 149 Oh St, 113, syllabi (2) and (3).

See also Nashville etc. Ry. Co. et al v. Bremen, 75 Fed. Supp., 539, and DeRamus v. Mengel Co., 74 Fed. Supp., 425.

The court feels that the only true classification is that of scrap rubber, and that to put these commodities under the classification of gas masks, in view of all the evidence and the law, would be a strained and arbitrary interpretation, and unfair.

If it is necessary to carry into effect this judgment, the court will also order reformation of the various bills of lading to read “scrap rubber.”

Judgment is rendered for the defendant with exceptions to plaintiff.


text:
    STATE, Plaintiff-Appellant, v. COLUMBUS GREEN CABS, Inc., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4430.
    Decided October 18, 1950.
    Herbert S. Duffy, Atty. Geni., John A. Robenalt, Asst. Atty. Geni., Columbus, for plaintiff-appellant.
    Schwartz & Gurevitz, Columbus, for defendant-appellee.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court for the defendant.

The plaintiff, by its petition, in five causes of action, sought a money judgment against the defendant for the amounts of its findings against the defendant for the years 1937, 1938, 1939, 1940 and 1941.

Notice to the defendant of the findings and refusal to pay is alleged. Defendant admits that during the times set out in the petition it was an employer subject to the provisions of the Unemployment Compensation Law of Ohio, admits the findings and notice of the Bureau and admits its failure to pay. Further answering, defendant avers that the findings were based upon gratuities allegedly received by the taxicab drivers employed by the defendant and which amounts of alleged gratuities were not taken into account by defendant in determining its total payroll as reported to the Bureau oí Unemployment Compensation for the period involved in the causes of action. Defendant further says that it had no control over said gratuities, never required its drivers to account for any gratuities, that they were not considered when fixing the wages of its drivers and that the rule prescribed by the Bureau for determining the amount of the alleged gratuities received by the defendant’s drivers was arbitrary and unfair. Defendant generally denied all allegations of the petition not specifically admitted. No reply was filed by the plaintiff but the cause was submitted to a judge without a jury upon a stipulation of the parties.

The stipulation provided that the Bureau in its findings computed contributions due upon an estimate of the amount of gratuities received by the employees of defendant as 10 per cent of their regular wages and further

“that the figure of 10% was not based upon any actual knowledge within the possession of the Commission nor upon the basis of actual figures reflecting tips received by the drivers.”

By the provisions of §1345-28 GC, the Commission had the right to make determination of the amount of contribution which the defendant should make and proof of this order by a certified copy of the findings constituted prima facie evidence of the facts therein contained. Typical of the findings attached to the petition is the statement over the signature of the Administrator for the Bureau of Unemployment Compensaio'n, Exhibit A, that upon due consideration of all the facts presented, * * *, the Bureau of Unemployment Compensation of the State of Ohio finds, first, that Columbus Green Cabs is indebted to the State of Ohio for Unemployment Compensation contributions as follows: then is set out the nature of the contribution under which is stated Unemployment Compensation, the contribution period, the amount of the contribution and the amount unpaid. The second paragraph of the finding is that the employer has failed to comply with §1345-28 GC of the Ohio Unemployment Compensation Act. The third paragraph is the finding that the employer is delinquent, etc.

As we interpret the controlling section these findings standing alone are sufficient to support the regularity and validity of the determination of the Bureau that the contribution is in the amount therein set out; that it is due and payable, and would support judgment, as prayed.

Sec. 1345-4(b) GC provides that the Administrator shall determine the contribution rates based upon percentage of wages (or remuneration) subject to contribution and §1345-1 (f) GC provides that remuneration shall include “gratuities customarily received by an individual in the course of his employment from persons other than his employer.” This latter provision clearly indicates a purpose to include gratuities received by employees as a part of remuneration or wages paid to employees and upon which, in part, the amount of the contribution should be computed. Sec. 1345-13 (a)-4 GC requires employers to furnish information as to the amount of wages paid and other necessary information.

The Bureau is authorized to promulgate reasonable rules affecting its procedure. Rule 2 requires as a part of the necessary information to be provided that “the employer shall include as remuneration payable the amount of gratuities or tips actually received by each worker or the reasonable estimate thereof.” (Emphasis ours.)

Manifestly, under the stipulation here the defendant failed to comply with this rule as to the amount of gratuities actually received by each worker or to make a reasonable estimate thereof.

The obligation upon the presentation of Exhibit A, the certificate of the Bureau, w'as upon the defendant to go forward and to meet the prima facie case made by the certificate. The defendant, having the stipulation heretofore set out made in open court, was satisfied to rely thereon.

Counsel for the State freely admits in oral argument and in brief that the sole basis of the estimate of the remuneration of defendant’s employees upon which contribution could be fixed was an opinion that employees of defendant customarily received as tips 10 per cent of their wages. No other factual consideration whatever entered into the estimate. The determination not only assumed that the employees received tips but also assumed the amount thereof. We believe that the first of these assumptions might be justified, but with no basis whatever for the second except some opinion of the amount of tips commonly given, the Bureau arrived at the 10 per cent figure. The stipulation, in our judgment, completely met the effect of the prima facie case made by the certificate of the Bureau. The rule of the Bureau, No. 2, provides that the employer in making report shall include as remuneration the amount of tips actually received by each worker or the reasonable estimate thereof. This rule is much like the present section of the Code. The estimate contemplated is that it relate to tips actually received. In our judgment, the process adopted by the Bureau did not result in a reasonable estimate of the tips actually received by defendant’s employees.

We are cited to a number of cases where estimates of Unemployment Bureaus were supported, but in all instances we find some basis in fact for the computation made. That is the element which is lacking here.

The judgment will be affirmed.

MILLER, PJ, and WISEMAN, JJ, concur.


author: By DOYLE, J: HURD, J.

text:
    MORAN, Plaintiff-Appellant, v. WEHRUNG d. b. a. E. E. WEHRUNG PARKING CO., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22020.
    Decided March 26, 1951.

      Harrison, Spangenburg & Hull, Cleveland, for plaintiff-appellant.
    McKeehan, Merrick, Arter & Stewart, Cleveland, for defendant-appellee.
    (DOYLE, J, of the 9th District sitting by designation in place of MeNAMEE, J.)
   OPINION

By DOYLE, J:

On the evening of May 17, 1947, John Moran, the plaintiff below, appellant herein, following an evening of night club entertainment, sought conveyance to or near his residence. A newly-made acquaintance offered the accommodation to carry him in his automobile in the direction of his home. As the two commenced to leave the club premises, Moran turned into the men’s room and the companion continued on, but stated that he would meet him across the street on the ramp leading to a parking area, where he presumably had left his car. Shortly thereafter, Moran departed from the club premises, proceeded across the street and up a ramp leading to a parking floor to look for his recent acquaintance (two structures having ramps for parking purposes were situated “across the street” approximately ninety feet apart). After several minutes of unsuccessful search on the ramp and parking area, rain commenced to fall, and Moran, while seeking shelter, fell from the outer extremity of the building to the ground twelve feet below and suffered serious inj uries.

It appears that, as Moran stood on the parking space floor, he observed to the east the wall of a building which he thought was flush with the floor upon which he was standing. His conjecture was wrong, because the outer eastern extremity of the parking floor ended five or six feet from the wall of the building toward which he looked. Along this outer side of the parking floor timbers were anchored, which served to prevent automobiles from moving over the edge.

As heretofore stated, Moran sought shelter from the rain, after failing to find his companion or his car, and not being conscious of the space between the buildings ran toward the building wall to the east, tripped over one of the timbers heretofore mentioned and was thrown through twelve feet of space to the ground below.

Suit for damages for personal injuries was commenced against the proprietor of the parking area, with the following allegations of negligence.

(1) In failing to provide a suitable fence, railing, guard rail or parapet around said roof so as to protect patrons or frequenters thereof from the hazard of falling therefrom.

(2) In failing to provide suitable lights or illumination, so as to reveal the presence and position of the edge of said roof;

(3) In placing certain large timbers at and around the edge of said roof, in such a position that persons walking thereon in the night season were likely to trip, stumble and fall.

(4) In placing said timbers in such an irregular fashion as to likely mislead persons walking thereon in the night season as to cause them to stumble and fall.

(5) In failing to give to the plaintiff warning of the hazards and dangers hereinbefore set forth.

(6) In failing to inspect the condition of said timbers and to cause them to be relined after they had been shoved around in irregular fashion by automobiles parked thereon.

(7) In failing to promulgate and enforce reasonable rules for giving warning to persons having occasion to be on the roof in said night season.

(8) In failing to provide for the plaintiff, as a frequenter of said premises, a place which was reasonably “safe” within the terms and provisions of §§871-13, 871-15 and 871-16 GC.

Issues were joined by the answer of the defendants; trial was held and a judgment was entered for the defendant upon a general verdict of the jury. From this judgment in the Court of Common Pleas of Cuyahoga County appeal was perfected to this court on questions of law.

The so-called “frequenter” statutes, §§871-13, 871-15 and 871-16 GC, are claimed by the appellant to apply to the facts in this case and error is claimed through the refusal of the court to make such application.

In this connection it must be observed that the injured litigant was not an employee or a workman of any kind on the parking area premises in a capacity connected or associated with work or labor. He was there solely in his own interest, for his own convenience, and entirely disassociated from work or employment.

Sec. 871-13 (parag. 11) GC provides in part:

“The term ‘safe’ and ‘safety’ as applied to any employment or a place of employment, shall mean such freedom from danger to the life, health, safety or welfare of employees or frequenters as the nature of the employment will reasonably permit * *

Secs. 871-15 and 871-16 GC impose definite standards of conduct upon the proprietor or owner of a place of employment to make his place of employment as free from danger for employees or frequenters as the nature of the employment will reasonably permit.

These sections of the Code are in pari materia and impose specific standards of care upon “employers” to protect workmen from harm and impose specific duties upon such “employers” to provide safe places for them to work.

In addition to the duty of an employer to workmen under the statutes, it is claimed that the same duty is owed to persons other than workmen who are classified as “frequenters” under §871-13, paragraph 5, GC. This provision of the Code appears as follows:

“The term ‘frequenter’ shall mean and include every person, other than an employee, who may go in or be in a place of employment under circumstances which render him other than a trespasser.”

It is obvious that the language standing alone could apply to any person who is not a trespasser, but when consideration is given to the evil which the entire legislation is designed to remedy, such object designed to be reached by the statutes must limit and control the literal import of the terms and phrases employed. The entire legislation is calculated to safeguard workmen and other persons connected in some way with the transaction of work or business with ■ the employer or in his place of employment and was never intended to place additional duties upon business proprietors or employers for the benefit of gratuitous licensees on such proprietor’s premises solely for purposes of their own. The statutes apply only to workmen, invitee or business visitors, as defined in Sec. 332, Restatement of the Law (Torts, Negligence 897).

If the statutes were held to benefit gratuitous licensees then a much greater burden would be placed upon employers of workmen in the conduct of their business than is placed upon other proprietors and owners of property.

It will be again observed that it is not shown by the record that the claimed prospective host of the injured person had used the parking facilities and consequently had asked him to come on these premises. This circumstance would make him at the most a gratuitous or bare licensee.

It is our conclusion that the statutes mentioned which appear under the title “Industrial Commission” are not applicable to the facts before us.

As stated, it appear from the evidence that reasonable minds could conclude only that the injured claimant was, at the time of the injury, at most a bare licensee on the premises of the defendant.

If it may be said that the fortuitous circumstances creating a prospective relationship of guest and host brought into existence for the prospective guest rights greater than those of a bare licensee when on the premises upon which the host’s car was parked, it must be noted that, in the case before us, there is no evidence that the prospective host had parked his car in the defendant’s premises. For aught that appears, it could have been parked in another nearby area “across the street” from the night club.

2. The Supreme Court of Ohio in Sharp Realty Co. et al v. Forsha, Jr., a minor, 122 Oh St 368, announced, per curiam:

“Until the case of Hannan, Admr. v. Ehrlich * * * (102 Oh St 176) is reversed or modified, we are required to follow the rule therein announced.”

The rule “therein announced” has not to date been reversed or modified and the requirement which the Supreme Court placed upon itself is likewise a requirement of this court. The rule is:

“A licensee takes his license subject to its attendant perils and risks and the licensor owes him no duty except to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril; he should not be exposed to hidden dangers, pitfalls or obstructions.”

3. The writer of this opinion, in' Elliman v. Gombar, 86 Oh Ap 352, discussed the applicability of the rule of Hannan Admr. v. Ehrlich, to the. facts there presented. That discussion is equally applicable to the facts in the instant case and are incorporated herein by reference.

4. It is the conclusion of the majority of this court that the only duty owed the appellant by the proprietors of the parking business, was to not intentionally, wilfully, wantonly or through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise. We find that this duty was not violated. The trial court should, as a matter of law, have arrested the case from the jury and entered a judgment for the defendant. Under these circumstances errors of which complaint is made need not be considered.

The judgment is affirmed. Exc. Order see journal.

SKEEL, PJ, concurs.

HURD, J, dissents.

DISSENTING OPINION

No. 22020. Decided March 26, 1951.

HURD, J.

(Dissenting.)

As indicated by the majority'opinion, the court affirmed the judgment in this case because it holds that the trial court should, as a matter of law, have arrested the case from the jury and entered judgment for the defendant, and by reason thereof, errors of which complaint is made need not be considered.

The assignments of error are as follows:

“1. The court erred in refusing to charge on the ‘frequenter’ statute;

“2. The court erred in refusing to give plaintiff’s request to charge No. 1

“3. The court erred in its general charge to the jury.

“4. The court erred in giving an erroneous interrogatory to the jury;

“5. The court erred in further instructing the jury on the erroneous interrogatory;

“6. The court erred in communicating instructions to the jury relating to this interrogatory without notifying counsel for either side that he was going to do so;

“7. The court erred in refusing to grant a mistrial.”

The concluding paragraph of the majority opinion reads in part as follows:

“It is the conclusion of the majority of this court that the only duty owed the appellant by the proprietors of the parking business, was to not intentionally, wilfully, wantonly or through active negligence, create pitfalls or hidden dangers, or cause such conditions to arise. We find that this duty was not violated. * * *.”

Disagreeing with this conclusion I feel it my duty respectfully to dissent from the opinion and judgment herein rendered.

It should be understood that the parking area in question from which the plaintiff fell to an alley below, is located upon the roof of a building which extends from the south side of Vincent Avenue north to the south side of Superior Avenue. The absence of any rail along the eastern edge of this roof made an issue presented by the pleadings and the evidence as to whether or not the employer had used reasonable care to furnish a safe place of employment in accordance with §§871-13, 871-15 and 871-16 GC.

The majority opinion is confined to a discussion of the applicability of the above cited sections of the Code and holds in effect that the same are not applicable to the facts and circumstances of this case, and that the plaintiff is not, as a matter of law, entitled to the benefits of the frequenter statute.

In my opinion, the language employed by the legislature in the frequenter statute (Sec. 871-13 GC), which is quoted in the majority opinion, is so plain and unambiguous, and its meaning is so clear, that judicial interpretation is not necessary or required. The record clearly shows that the defendant is an “employer” and that the accident occurred in “a place of employment,” within the meaning of the statute. Now it cannot be said, as a matter of law, that the plaintiff under all the circumstances of the case was a trespasser, although a jury may so find as a matter of fact. The statute excludes only “trespassers” from its operation, in a place of employment.

It is my view that appellant was entitled to a charge on the “frequenter” statute, as requested and that it was prejudicial error to refuse the same.

In view of the holding of the majority of the court in the majority opinion, it would serve no useful purpose to discuss in detail the other assignments of error, although all the members of this court are of the opinion that some of these assignments of error have considerable merit, particularly Assignment of Error No. Six, namely, that the “court erred in communicating instructions to the jury, relating to an interrogatory, without notifying counsel for either side that he was going to do so.”

For the reasons stated therefore, it is my conclusion that the judgment should be reversed and the cause remanded for further proceedings according to law.


text:
    BRUSH et, Plaintiffs-Appellees, v. EASTERN MOTOR DISPATCH, INC., a corporation, Defendant-Appellant, and KINNEAR, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4402.
    Decided October 5, 1950.

      Wiles & Doueher, Columbus, for plaintiffs-appellees.
    Knepper, White & Dempsey, William E. Knepper, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment for $7,000.00 for plaintiff, Earl Brush, and for $705.00 for plaintiff, Boston Insurance Company, against the defendant. There was also a judgment for plaintiff, Brush, on defendant’s cross-petition.

This appeal is particularly directed to the judgment for plaintiff, Brush, against the defendant as the judgment of the plaintiff, Boston Insurance Company, is dependent upon the validity of the judgment in favor of Brush.

Eight errors are assigned:

(1) Refusal of the trial judge to direct a verdict for defendant.

(2) Overruling the motion for judgment notwithstanding the verdict.

These assignments raise the same question and will be considered together.

(3) Error in overruling motion for new trial.

(4, 5, 6, 7) Error in the general charge in particulars which we hereinafter discuss, and

(8) That the damages awarded to the plaintiff are excessive, appearing to have been given under the influence of passion and prejudice.

In discussing this appeal we refer to Earl Brush as the plaintiff and to the Eastern Motor Dispatch, Inc., as the defendant. The negligence charged against the defendant is that as plaintiff’s automobile, moving on its right side of the highway, approached defendant’s trailer and tractor, it was driving on its left and to avoid meeting it plaintiff drove to his left and across the highway, whereupon, defendant drove over to its right side of the road and the collision occurred.

The pertinent facts developed are that on the afternoon of October 20, 1947, the plaintiff was driving north on State Route No. 42, and had reached a place about four miles north of Cedarville. In front of him was a tractor and trailer being operated by Russell Guthermuth. These cars were moving at about 40 miles per hour and plaintiff had been following the Guthermuth outfit for several miles.

Route 42 is a two-lane highway. The driver of the outfit ahead of plaintiff suddenly flashed his rear lights, put on his brakes, slackened his speed and drove to his right and, according to his statement, almost completely off the traveled portion of the highway. He testified that his sudden stop and movement to the right and off the highway was to avoid collision with the tractor and'trailer of defendant which was moving south on said highway and on the left or its wrong side of the road. Upon plaintiff observing the movement to its right of the truck ahead of him he turned somewhat to his right and then to the left but while still on his right side of the road observed the tractor and trailer of defendant approaching him on its left side of the road, whereupon, to avoid collision with the truck of defendant, plaintiff steered to the left across the highway and came to a stop over and beyond the left side thereof. At the time that Guthermuth began to stop plaintiff says he was 75 to 100 feet back of Guthermuth. The driver of defendant’s tractor and trailer testified that he at no time was off his right side of the road, that plaintiff suddenly drove from behind the Guthermuth truck onto and across defendant-driver’s path where the collision occurred at or near the right edge of the traveled portion of the west side or defendant’s side of the highway.

THE FIRST AND SECOND ASSIGNMENTS OF ERROR.

Assuming that the plaintiff did violates the Assured Clear Distance Ahead Statute and was therefore negligent as a matter of law, was the question of proximate cause of the collision one of fact for the jury? In our judgment it was upon the authority of Glasco v. Mendelman, 143 Oh St 649. This conclusion disposes of the assignments of error testing the action of the court in overruling the motions for directed verdict and for judgment notwithstanding the verdict. The application of the Statute to the factual development could be discussed but as the plaintiff has not availed himself of the right to have the question decided we do not consider it Sec. 12223-21a GC.

THE 4th, 5th, 6th AND 7th ASSIGNMENTS OF ERROR.

The plaintiff alleged that as a result of the collision he suffered a bump on his head, concussion of the brain, cuts over his right eye, constant headaches, a fracture of the right knee cap requiring surgical operation to repair which operation will leave a permanent scar, that he was required to remain in the hospital for nine days and thereafter confined to his bed at his home for a period of several weeks. His loss of time is set up as are medical, hospital and ambulance services incurred. Proof was offered to support most of the averments as to the extent of the injuries, as pleaded. During the testimony of a doctor who attended plaintiff some questions were propounded intended to elicit answers respecting the permanency of the injuries suffered by the plaintiff. At the time of the objection to the questions by counsel for the defendant the admission was made that the scar on plaintiff’s knee was permanent, but it was urged that no other permanent injury was pleaded. The trial judge refused to permit the questions to be answered.

In the general charge as an element of damages the jury was told that it could consider any pain and suffering that “it is reasonably certain that the plaintiff will suffer in the future” and also that “in considering question of measure of damages, if you reach that point, you will consider the character of the injuries as being permanent or otherwise as to their duration.” These charges are made the subject of assignments of error.

The averment that the injury would cause a scar on plaintiff’s knee charged a permanent injury which the jury had a right to evaluate.

It also appeared from the evidence that the plaintiff had at intervals from the time of his injury suffered headaches and aches from the injury to the knee and it is reasonable to conclude that they would continue for sometime in the future. The headaches and the evidence respecting the ache from the injury to the knee could be said to be such suffering as naturally flowed from the injury pleaded. Cincinnati Traction Co. v. Smith, 14 Oh Ap 389. The difficulty respecting both of these elements of damage is that the jury had no means of determining how long in the future, less than permanently, the plaintiff would suffer from them. Thus, if they would award damages for this suffering, and it could have been done under the charge, such an award would be speculative without some expert testimony advising the jury of the probable time in the future that the suffering of plaintiff would continue. This issue could not properly be determined by the jury nor do we have any measuring stick by which we can order a remittitur.

The charge of the court respecting future pain and suffering was erroneous upon the evidence and was prejudicial to the defendant.

The court also charged the jury on the question of the concurrent negligence of the defendant and Guthermuth. the driver of the truck ahead of plaintiff’s automobile, and said that where two parties were negligent and their negligence concurring or cooperating caused injury to another that both were liable and that the injured person could make choice as to whom he would sue. This charge was gratuitous and not required but we cannot say that it prejudiced the defendant because the plaintiff was relying upon the negligence of the defendant as pleaded. If the charge had any effect whatever on the issues it would be to suggest that possibly Guthermuth could be found to be negligent but that it would reflect in any manner upon the right of the plaintiff to recover against the defendant cannot be concluded.

EIGHTH ASSIGNMENT OF ERROR.

We find nothing to support the claim that the damages awarded are excessive or were given under the influence of passion and prejudice.

It follows from what we have said that the 3rd assignment of error, the overruling of the motion for hew trial, is well made and that the charge in the particular which we have discussed was prejudicial to the defendant. For these reasons the judgment will be reversed and the cause remanded for new trial.

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