text:
    SLOTHOWER et, Plaintiffs-Appellants, v. DAYTON POWER & LIGHT COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2337.
    Decided September 22, 1955.
    Sharts, Singer & Brown, Dayton, for plaintiffs-appellants.
    Roy D. Boucher, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss the appeal on the ground that the order appealed from is not a final order.

In the court' below defendant filed a motion for judgment on the pleadings. The motion was directed to the fourth cause of action in the third amended petition. This motion was sustained. The court, on its own motion, struck the fourth cause of action from the third amended petition. Plaintiff-appellant was granted leave to file a fourth amended petition, no time limit being stated. No fourth amended petition has been filed; neither has judgment of dismissal been entered.

In Vol. 2, O. Jur., 2d, page 623, Section 49, the text is as follows:

“A motion for judgment on the pleadings is in the nature of a general demurrer and presents only questions of law, and appeal may not be taken from the overruling of such motion unless the pleader stands on the motion and permits judgment to be entered against him. Consequently the overruling of such motion is not a final order upon which an appeal on questions of law may be predicated. Nor is an order purporting to enter judgment on the pleadings for the plaintiff as to the first defense in the defendant’s answer and that the motion for such judgment be and is sustained a final order from which an appeal on questions of law can be taken.

“Where, however, the defendant makes a motion for judgment on the pleadings, such as the petition, answer, and reply, and that motion is sustained and judgment is entered for the defendant, it constitutes a final judgment upon which an appeal on questions of law may be taken.” (Emphasis ours.)

In the footnote two cases are cited. Stephens v. Trotwood, 43 Abs 157, 53 N. E. (2d) 650 (Court of Appeals of Montgomery County), and Hummel v. Columbus Baseball Club, Inc., 71 Oh Ap 321, 49 N. E. (2d) 773 (Court of Appeals of Franklin County). In the former case the court held that an order sustaining a motion for judgment on the pleadings did not constitute a final order from which an appeal on questions of law could be taken. In the latter case the motion for judgment on the pleadings was sustained and judgment was entered for the defendant. The court held that such order constituted a final order from which an appeal could be taken.

Inasmuch as the record in this case shows that plaintiff was granted leave to file an amended petition and judgment for defendant on the fourth cause of action was not entered, the order made does not constitute an appealable order.

Motion to dismiss sustained.

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


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    SILVERSTEIN, d. b. a. INTERNATIONAL NOVELTY CO., Plaintiff-Appellant, v. BAUMGARDNER, Defendant-Appellee.
    Ohio Appeals, Second District, Darke County.
    No. 716.
    Decided March 25, 1954.
    Floyd D. Smith, Greenville, for plaintiff-appellant.
    Martin D. Pluess, Greenville, for defendant-appellee.
   OPINION

By THE COURT:

This is a law appeal from the judgment of the Common Pleas Court of Darke County. The defendant entered the same premises and conducted a jewelry business where Raymond Daum had formerly conducted a jewelry business. The factual question was-whether Daum sold or transferred in bulk the stock in trade of his jewelry business to the defendant and whether by reason of said transfer the defendant was amenable to the Bulk Sales Law. Sec. 11102 GC (§1313.54 R. C.)

The evidence was not much in dispute. The defendant testified that Daum did not sell nor transfer to her any stock in trade; that he closed the business and took practically all merchandise with him. A few articles of no value remained in the room, and were abandoned by Daum. Some time later the defendant rented the same premises and started a jewelry business, purchasing her own stock in trade from persons and concerns other than from Daum. This evidence was not refuted. The trial court held that under the facts the Bulk Sales Law had no application. The judgment is amply supported by the record.

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

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


author: By BARTLETT, J.

text:
    ZECISKI, Plaintiff, v. ZECISKI et, Defendants.
    Common Pleas Court, Franklin County,
    No. 190830.
    Decided October 26, 1954.
    King & Gross, Columbus, for plaintiff.
    Robert M. Draper, Columbus, for defendants.
   OPINION

By BARTLETT, J.

MOTION TO MAKE PETITION DEFINITE AND CERTAIN OVERRULED.

The motion to make petition definite and certain seeks to require plaintiff to set forth his address in the caption, which already contains these words, “Box 423, Fairborn, Ohio.”

Counsel for the defendant asserts this requirement is essential to the determination of the jurisdiction of the court. This is a suit for partition of real estate in this county. Under §2307.32 R. C„ such suit must be brought in this county, regardless of where plaintiff resides.

Furthermore, the law does not require the addresses of parties to be stated. Sec. 2309.03 and §2309.04 R. C., only the names of the parties is required by law; but by rule of court the addresses of all parties must be stated in the petition. This is for the convenience of the Court and .the parties,-but has nothing to do with jurisdiction of the Court.

Counsel asserts the information given does not constitute an address, as one may live in Germany and have a box number in Ohio; and that the plaintiff’s address is necessary, so that a subpoena may be issued for him on deposition. The Court cannot agree the information given does not constitute an address. The service of a subpoena shall be on the person or “left at his usual place of residence.” Sec. 2317.15 R. C. The same is true as to the service of a summons under §2703.08 R. C. These statutes use the phrase “usual place of residence,” while the court rule merely requires “the addresses of all” parties shall be contained in the petition. There must be a difference between one’s residence and address under certain circumstances.

The Court feels that plaintiff has complied with the rule requiring his address be given, and there is no law or rule that he must set out “his usual place of residence.” Certainly there is nothing before the Court to indicate such information is essential to the defendant in the preparation of her answer, which under the present circumstances, is the province of a motion to make the petition definite and certain.

The motion is overruled. Entry accordingly with exceptions by counsel for the defendant.


author: By KOVACHY, PJ.

text:
    STATE, ex rel. HORVATH, Relator, v. HABER et, As Members of the Board of Elections of Cuyahoga County, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23649.
    Decided September 13, 1955.

      Charles R. Miller, Cleveland, for relator.
    Frank T. Cullitan, County Pros., Saul Danaceau, Asst. County Pros., Cleveland, for respondents.
   OPINION

By KOVACHY, PJ.

This is an original action in mandamus filed in this Court, in which the relator, an eligible elector of the City of Cleveland, seeks a writ of mandamus “ordering the Board of Elections of Cuyahoga County and the Chief Clerk thereof to reopen and accept registration and changes of registration for eligible resident electors of Cleveland, Ohio, until the tenth day preceding the October 4th, 1955, non-partisan primary election.” The respondents filed a demurrer to the petition “on the ground that it does not state facts sufficient to constitute a cause of action.”

The parties stipulate that the relator has a justiciable interest in the subject matter of this lawsuit; that he is a qualified elector of the City of Cleveland; 'that he presently is not registered to vote in the county; that the City of Cleveland is holding an election designated as “non-partisan primary election” on October 4, 1955; that the Board of Elections closed its office for registration of qualified electors of the City of Cleveland forty days preceding the date set for such election, to-wit: on August 25, 1955, in accordance with the provisions of §3503.11 R. C., relating to a “primary election”; that the Chief Clerk and then the Board refused to register him on August 26, 1955, and August 30, 1955, respectively, after he had duly presented himself on each occasion for that express purpose; and that final judgment may be rendered in the case upon the disposition of this demurrer.

The election herein designated is authorized by Section 4, Chapter 3 of the Charter of the City of Cleveland which reads:

“Nominations

“Candidates for all offices to be voted for at any municipal election under the provisions of this charter shall be nominated at a non-partisan primary election to be held on the fifth Tuesday prior to such municipal election.”

and the Charter in Section 15 provides in part “* * * the provisions of the general election laws of the state shall apply to all such elections except as provision is otherwise made by this Charter * * *.”

The definitions of the General Election Laws (§3501.01 R. C.), dealing with elections, read:

“(A) ‘General Election’ means any election held on the first Tuesday after the first Monday in November.

“(D) ‘Special election’ means any election other than the elections required to be regularly held on the day of a general or primary election, provided that a special election may also be held on the day of a general or primary election.

“(E) ‘Primary’ or ‘primary election’ means an election held for the purpose of nominating persons as candidates of political parties for election to offices, and for the purpose of electing persons as members of the controlling committees of political parties and as delegates and alternates to the conventions of political parties. Primary elections shall be held on the first Tuesday after the first Monday in May of each year.”

The applicable part of §3503.11 R. C. reads:

“Registration at board of elections.

“Persons qualified to register or to change their registration may register or change their registration at the office of the board of elections at any time such office- is open except forty days preceding a primary or general election, or ten days preceding a special election held on a day other than a primary or general election day and ten days following a primary, general, or special election * *

The relator contends that, in view of the provisions in Section 15 of the Charter, that “the provisions of the general election laws of the state shall apply to all such elections,” elections conducted by the City of Cleveland under its Charter fall into the classifications established by the general election laws of the state; that a primary election by state law is partisan in nature and must be held “the first Tuesday after the first Monday in May of each year”; that since the election here under consideration is non-partisan in nature, and not held on a day prescribed by state law, it necessarily falls within the category of a “special election,” rather than a “primary election” because by definition, as indicated above, a “special election” is any election other than the elections required to be regularly held on the day of a general or primary election * * and that as a result thereof, the board of elections is in error in not keeping its office open for registration except ten days preceding the October 4, 1955 election as provided in §3503.11 R. C. in case of a special election.

With this contention, we do not agree.

Section 3 of Article XVIII of the State Constitution, reads:

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

Section 7 reads:

“Any municipality may frame and adopt or amend a charter for its Government and may, subject to the provisions of section 3 of this article, exercise thereunder all powers of local self-government.”

1. Under these provisions of the Constitution. of Ohio, the City of Cleveland has full power to provide for a non-partisan primary election for the nomination of its elective officers.

The State, ex rel. Stanley v. Bernon et al, 127 Oh St 204.

“Syllabus 3.

“Under Sections 3 and 7 of Article XVIII of the Constitution of Ohio, municipalities have authority to provide by charter for the nomination of their elective officers.”

2. The non-partisan primary election, set forth in the Charter, relates to a distinctly local municipal affair and is in no way controlled or modified by primary elections defined and provided for by the general election laws.

Mulcahy v. City of Akron et al, 27 Oh Ap 442.

Syllabus 1.

A municipality, having duly adopted a charter, is empowered to regulate its local affairs in compliance with its charter provisions, except when they conflict with constitutional provisions, and, as to matters which relate to distinctly local municipal affairs and do not involve the concern of the state at large, the charter provisions and ordinances passed thereunder supersede state laws in conflict therewith.”

The Supreme Court in State, ex rel. Edwards, 90 Oh St 305, states the principle of law involved as follows on page 310:

“As long as the provisions made in the Charter of any municipality with reference to its Civil Service comply with the requirements of Section 10 of Article 15 and do not conflict with any other provisions of the Constitution, they are valid and under the cases referred to discontinue the general law on the subject as to that municipality.”

3. By virtue of Section 15, Chapter 3 of the Charter, §3503.11 R. C. is made a part of the Charter and the words used in such section of the code must be construed in the light of and in connection with the language employed in the. Charter in order to carry out its intendment. Consequently, the expression “primary election” found in §3503.11 R. C. in effect has reference to and includes a “non-partisan primary election.”

Webster’s New International Dictionary, Second Edition, Unabridged, defines “primary election” as follows:

“PRIMARY ELECTION, Political Science. Frequently shortened to primary. A preliminary election at which direct nomination of candidates for office (direct primary) are made. Such elections are now generally held under State regulations rather than under party rules. They are usually held on the same day for all parties, employ the secret ballot, and select by a plurality vote. There are several types: the closed primary election, at which members of only one political party vote; the open primary election, at which voters may participate without making known their party allegiance; and the non-partisan primary election, at which the names of candidates on the ballot have no party designation.” (Emphasis ours.)

We hold, therefore, that the non-partisan primary election to be held on October 4, 1955, in the City of Cleveland, is not a special election but a primary election required to be regularly held by the Charter of the City of Cleveland and comes within the purview of §3503.11 R. C., as a primary election and that, in accordance therewith, the Board of Elections o'f Cuyahoga County acted properly and within the law in keeping its office open for the registration and changes of registration for eligible resident electors of the City of Cleveland except for forty-days before the date set for said non-partisan primary election.

The demurrer is sustained, the petition dismissed, and judgment rendered for the respondents with costs of this action.

Exceptions. Order see journal.

SKEEL, J, HURD, J, concur.


author: By QUATMAN, PJ.

text:
    SALYER, Plaintiff-Appellee, v. OYLER BROTHERS, INC., Defendant-Appellant.
    Ohio Appeals, Third District, Union County.
    No. 262.
    Decided May 25, 1955.

      Donithen, Michel & Davis, Marion, for plaintiff-appellee.
    Knepper, White, Richards, Miller Si Roberts, Columbus, for defendant-appellant.
   OPINION

By QUATMAN, PJ.

This is an appeal on questions of law from the Common Pleas Court of Union County, Ohio.

The facts disclose that the plaintiff-appellee was operating his automobile at night at a speed of approximately thirty miles per hour, under extremely hazardous weather conditions; that he had been following another automobile at a distance of approximately one hundred feet for seven or eight miles; that at times, visibility was so poor he was unable to see even the pavement between the two cars but at all times could discern the tail lights of the preceding automobile, which he distinguished as being a Buick. Suddenly and without warning, the Buick swerved to the right and entered the ditch. Plaintiff immediately applied his brakes, whereupon for an instant before striking same, he was able to discern standing in his lane of traffic, the unlighted rear portion of a flat-bedded semi-trailer truck.

There was evidence that the swerving of the Buick caused water to spray into the air cutting down plaintiff’s visibility at a time between the applying of his brakes and the discerning of the truck. (Record, 32. 59. 66.)

Plaintiff’s car was demolished and he was severely injured.

Appellant assigns the following errors:

1. The court erred in overruling defendant’s motions for judgment on the opening statement; for a directed verdict at the end of plaintiff’s case, at the conclusion of all the evidence; and for judgment notwithstanding the verdict, for the reason that the evidence conclusively shows that the plaintiff was guilty of negligence as a matter of law and that said negligence directly contributed to cause the collision and his injuries.

2. The court erred to the prejudice of the defendant in permitting the sheriff to testify from hearsay, and in its charge on §6307-100 GC.

3. The court erred in its charge to the jury on the subject of damages in that the charge as given invited the jury to award speculative damages for possible futüre disability.

4. The court erred in its general charge in including a charge on emergency, which was not shown by the evidence to exist.

It is our opinion that the court did not err in overruling defendant-appellant’s motion for a directed verdict at the conclusion of plaintiffappellee’s opening statement.

The success of plaintiff’s case rests on the question as to whether or not he is in violation of §6307-21 GC, §4511.21 R. C., the pertinent part of which reads as follows:

“No person shall drive any motor vehicle * * * in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”

The Supreme Court, in Kormos v. Cleveland Retail Credit Men’s Company, 131 Oh St 471, ruled that failure to comply with this statute renders the violator guilty of contributory negligence as a matter of law. However, it has also been established that the operation of the statute may be avoided where the operator can excuse his action by proving a sudden emergency changing the situation but that did not arise by reason of his own failure or neglect to comply with the rule.

In Smiley v. Arrow Spring Bed Company, 138 Oh St 81, Judge William L. Hart states:

“* * * such assured clear distance ahead is suddenly cut down or lessened, without his fault, by the entrance within such clear distance ahead and into his path or line of travel of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.” (p. 88.)

In the instant case, the plaintiff-appellee, in both the petition and by opening statement, alleges in effect that he is excused from the operation by reason of the sudden swerving to the right and off the highway, of the preceding automobile, together with the spraying- of water into the air, leaving him exposed to the rear of the truck in his forward lane of traffic and which he could not, by reason thereof, discern in sufficient time to avoid striking.

It is the .opinion of this court that these allegations present a factual situation that the plaintiff should properly be given an opportunity to prove by the submission of his evidence.

It was unquestionably the purpose of the legislature in having enacted §6307-21 GC, supra, to place a greater responsibility upon the driver of a motor vehicle by refusing him recovery for damages where he fails within the limitations of the statute to keep his vehicle under control. While this section has been said to be harsh, it is nevertheless not unreasonable to require that each driver exercise extreme caution in the operation of his vehicle on our modern but overcrowded highways, and at the same time be prepared to accept the consequences of any failure on his part to do so. A multitude of cases have arisen under the statute, many of which are ably reviewed in the briefs of this case.

In support of his contention that he is excused from the operation of §6307-21 GC, supra, plaintiff-appellee relies strongly, on the case of Schwedler v. Interstate Motor Freight System, 53 Oh Ap 363. In that case the sustaining of a motion directing a verdict in favor of defendant, at the conclusion of plaintiff’s opening statement, was overruled by the court of appeals.

The evidence disclosed that very shortly before the accident, an automobile passed the car of plaintiff (Schwedler) and then proceeded immediately in front of him. Suddenly the preceding car swung sharply to the left, and plaintiff discovered he was imminently in danger of striking a' large truck standing in his lane of traffic and which he was unable to avoid. The truck was unlighted and there was a foggy gray mist in the night air.

We distinguish the Schwedler case, supra, from thé instant case in that the preceding car in that case had passed the car of plaintiff only a very short time before the accident. The assured clear distance was suddenly cut down or lessened, without the fault of plaintiff, and he could not have avoided the collision in the exercise of ordinary care. Smiley v. The Arrow Spring Bed Company, supra.

In the instant case, the evidence discloses that the plaintiff had been following the preceding automobile, under extremely poor conditions of visibility, for seven or eight miles and at the close distance of one hundred feet. Certainly, under those conditions, ordinary care would demand that the plaintiff be prepared to stop his car between the distance of his car and the car ahead. Nor did the plaintiff have the right to assume that the road was free of obstructions in front of the preceding car.

Those cases holding that the operator of a motor vehicle has a right to assume that others in the use of the highway will do so in a lawful manner can have no application to the instant situation. See, Matz, Admr., v. J. L. Curtis Cartage Co., 132 Oh St 271. If that rule were extended it would overrule every case in which the plaintiff was found guilty of contributory negligence under §6307-21 GC, where he struck a parked vehicle in his forward lane of traffic. See, Smiley v. The Arrow Spring Bed Co., supra, and cases reported therein.

The Schwedler case was considered in Bailey v. Holub Iron & Steel Co., 29 Abs 259. (Ninth District.)

In that case the evidence disclosed that plaintiff, while operating his automobile at a lawful rate of speed, was in the act of overtaking the preceding automobile. At a time when the two cars were approximately twenty-five feet apart, the preceding car accelerated and at the same time turned sharply to the left to pass a motionless truck standing unlighted in the forward lane of traffic.

The plaintiff testified that by reason of the sharp turning of the preceding automobile he did not have an opportunity to see the truck nor slacken his speed. Wherefore he struck the truck with great force.

The court recognizes the rule, in interpreting the assured clear distance ahead statute, that an operator who has failed to comply with the statute may excuse such failure by showing that without his fault and because of circumstances over which he had no control, compliance with the law was rendered impossible. Kormos v. Credit Men’s Co., supra.

On page 261 of the opinion, the court states as follows:

“Applying the foregoing propositions of law to the instant case and assuming as the truth all of the facts and circumstances which it is claimed constitute such legal excuse, we find that they do not establish a situation whére, without the fault of the plaintiff (appellee), and because of circumstances over which he had no control, compliance with the law was rendered impossible.”

This case was certified to the Supreme Court as being in conflict with the Schwedler case but was subsequently settled by the parties and dismissed.

In a review of Ohio case law for 1936, by William L. Hart, present member of the Supreme Court of Ohio, as contained in 7 O. O., page 293, the Schwedler case is reviewed and commented upon, as follows:

“In view of the holdings of the Supreme Court the writer has doubts as to the correctness of this decision. May it not be said that the limit of the assured clear distance ahead for plaintiff’s decedent was the automobile ahead of him, and since he could not see beyond it he had no right to assume that the highway was clear ahead of the first automobile? If the automobile in front had stopped suddenly to avoid collision with the' tractor, and the driver of the second automobile had crashed into the automobile in front, the assured clear distance ahead rule would apply against the driver of the second car. (The Higbee Co. v. Lindemann, 131 Oh St 479, 6 O. O. 154.) The case of Schwedler v. Interstate Motor Freight System, 53 Oh Ap 363, 7 O. O. 171, is not one where the view ahead was interrupted by something coming suddenly into the path of the operator’s automobile, making it impossible to avoid a collision, but a case where the operator took it for granted that there was no obstruction ahead in the highway, when as a matter of fact he had no clear view or road ahead. If he had been approaching and going over the crest of a hill, beyond the summit of which he had no view, he would not be relieved from the application of the assured clear distance ahead rule if he found himself unable to stop before crashing into a truck parked on the other side of the hill. We contend that the farther limit of the assured clear distance ahead for him was the limit of his view ahead even as modified by the forward car turning out leaving an obstruction, to-wit, the tractor, in his path a few feet farther beyond. The rule is a severe one for the motorist, but in the interests of safety on the highway, and especially for the benefit of the pedestrian, the legislature deems it a salutary one.” (Page 298.)

See also, Moore v. United States Truck Co., 260 Mich., 56, 244 N. W. 228, cited with approval in Smiley v. The Arrow Spring Bed Co., supra.

It is the opinion of this court that the plaintiff-appellee failed to submit any evidence in proof of the petition that would avoid the operation of the “assured clear distance rule” as contained in §6307-21 GC. We therefore hold that the. lower court erred in overruling defendant-appellant’s motion for a directed verdict made at the conclusion of plaintiff’s case.

We sustain appellant in its third assignment of error regarding the following charge given by the lower court.

“In determining the amount of damages that you will award, you will take into consideration the pain and suffering that the plaintiff has gone through, the nature and extent of his injuries, any permanency of injuries that may extend into the future * *

The rule in Ohio, with regard to prospective future damages in personal injury cases, is established in the case of The Pennsylvania Co. v. Files, 65 Oh St 403. The lower court in that instance charged the jury as follows:

“You may consider as an element of damages the pain he has suffered, resulting from such injuries, and also such prospective damages, if any, as the jury may believe he has sustained or will sustain.”

The Supreme Court found this charge to be too broad and ruled that prospective damages should have been confined to such as were reasonably certain to follow from the injury complained of.

A similar case is found in Toledo Railway & Light Co. v. Prus, 7 Oh Ap 412, wherein the lower court charged:

“If you find from the testimony that those injuries are permanent you can incorporate in your assessment of damages for such future pain and suffering as you find from the evidence is liable to ensue.”

The court found that the word “liable” was no more than the equivalent of “may” and that the jury, by this word in the charge, were justified in considering any damage that might by any contingency or possibility ensue in the future, and was therefore erroneous and prejudicial.

Another case in point is Leopold v. Williams, 54 Oh Ap 540, 23 Abs 582. In that instance the lower court charged that the jury were to consider “the extent, if any, to which it (injuries) may be permanent.”

In ruling on this charge, the appellate court found that the use of the word “may” was unfortunate and prejudicial, for it suggested consideration of possible, not “reasonably certain,” effects.

Appellant contends that the lower court erred in allowing the Sheriff of Union County to testify as to statements of the driver of the truck, appellant’s employee, made after the accident. The statements were to the effect that the truck had been stationary on the road for fifteen or twenty minutes and that he (the driver) had made no effort to set out flares or fusees to warn approaching traffic of its presence.

Plaintiff-appellee asserts that the statements are within the “res gestae” rule; were made by an employee of the defendant and within the scope of his employment or in the alternative were not prejudicial to the defendant, as the statements were cumulative only and tended merely to corroborate the testimony of plaintiff.

In view of the length of time that expired between the time of the accident and the time it required the sheriff to reach the scene, and the fact that the statements were made in response to the questions asked of him in the course of the official inquiry, it cannot be said that the statements were impulsive or spontaneously made while he was still subject to the stimulus and nervous excitement occasioned by the accident. See, Bake v. Industrial Commission, 135 Oh St 627; Liberty Highway Co. v. Callahan, 24 Oh Ap 374.

Appellee’s contention that the statements are admissible on the theory of principal and agent, are without merit. See, 17 O. Jur., Evidence, Ch. 216, p. 285, and related cases.

In addition to not being within the “res gestae” rule, it is the further opinion of this court that the statements were prejudicial in that they were not merely corroborative or cumulative, but introduced facts that may not otherwise have been considered, namely, that the employee of the defendant made no effort to warn approaching traffic of the dangerous condition existing on the highway, by at least taking the simple precaution of setting flares or fusees. Such testimony would be damaging to the interest of defendant-appellant, and having been made by its employee, would be given great weight.

We find no additional error.

However, for the reasons and upon the authorities herein set forth, the judgment of the lower court is reversed, and this court, proceeding to render the judgment which the said court should have rendered on the motion of the defendant at the conclusion of plaintiff’s evidence in this case, orders that final judgment be entered in favor of defendant-appellant. Exceptions noted.

MIDDLETON and YOUNGER, JJ, concur.


author: By PUSATERI, J.

text:
    MERRICK, Deceased, Estate of, In re.
    Probate Court, Clinton County.
    No. 11273.
    Decided December 8, 1955.
   OPINION

By PUSATERI, J.

The problem presented in this matter briefly stated, is as follows: A stock certificate duly indorsed by the owner (decedent herein) of record thereof some twelve years prior to her death; no delivery of said certificate ever having been made to the indorsee thereof although he was well aware that the indorsement had been made; the administrator of the estate of the indorser found said certificate in decedent’s safety deposit box and properly included it in the inventory and appraisement of decedent’s estate; the indorsee of said stock. certificate filed exceptions to the inclusion of said stock certificate in said inventory and appraisement, basing his exceptions solely on §1705.13 R. C.; said indorsee does not claim said certificate by reason of a gift, inasmuch as he cannot show actual delivery.

At first blush it was the opinion of this Court that determination of this matter based on the statute relied upon by the exceptor herein, was a matter which should have been brought in some other manner in some other court. However, upon further consideration, this Court has concluded that the inclusion or exclusion of any item of property in an estate is, and should be, the proper determinal function of a Probate Court.

This Court, after a thorough search, can find no reported Ohio decisions interpreting or dealing with §1705.13 R. C. Therefore, it appears that virgin territory must be explored in order to properly determine this matter.

A close reading of the aforementioned §1705.13 R. C. leads this Court to the opinion that said section applies specifically to the factual situation as presented herein. There can be no doubt but what the indorsing of the stock certificate by the owner thereof, said indorsement never having been “undone” by the indorser, was an attempted transfer of title; it is admitted that no delivery was made; which brings us to the final requirement of §1705.13 R. C., namely that such a situation “* * * shall have the effect of a promise to transfer, after the obligation, if any, imposed by such promise shall be determined by the law governing the formation and performance of contracts.” It would seem therefore that this matter boils down to one question, namely, was there a contract upon which to rest the obligation mentioned in §1705.13 R. C.?

Certainly nothing in the record indicated any written contract between the indorser and the indorsee herein. Further, the Court does not believe that any specific oral contract existed between the indorser and the indorsee. However, it is the opinion of this Court that an implied contract did exist between the indorser and the indorsee and that said implied contract evolved from the allowance by the indorsee of the rent free use of his property by the indorser and the indorsement of the stock certificate by the decedent indorser.

The Court is well aware of the long standing rule of Ohio case law to the effect that in order for a relative of a decedent to be compensated for services performed by said relative for said decedent during his lifetime, a contract, either written or oral, must be shown by clear and convincing evidence. However, the reply brief presented to the Court on behalf of the exceptor herein, contains a very exhaustive collection and study of Ohio cases dealing with the above mentioned case law rule. Further study by this Court indicates that in all of the Ohio cases following said rule (laid down in Hinkle v. Sage, 67 Oh St 256) the relative of the decedent lived in decedent’s household as a member of decedent’s “family group.” The only exception to this is the case pointed out by exceptor’s reply brief, namely, 54 Oh Ap 303 wherein the Court held that even though the relative had not lived in decedent’s home or “family group” while performing the services, the fact that said relative was the son of decedent was such a strong factor as to be determinative. In the instant case the relative is a nephew of the decedent, not living in the “family group” of the decedent, but in fact living in another state.

In Hinkle v. Sage, 67 Oh St 256 at page 262, the Court put in a brief and clear manner the basic reason for its decision, when it stated “Cases of this kind are odious and are not favored by the courts because they afford opportunity for fraud against the estates of deceased persons and great temptation to perjury, by disappointed or avaricious relatives. Hence the courts exact clear and unequivocal proof of an actual agreement upon the one side to perform services for compensation and upon the other side to receive the services and pay for them.” This Court whole-heartedly agrees with the reasoning set forth above. However, in» the instant case we have an entirely different situation. It is not necessary to take the sole word of “a disappointed or avaricious relative,” for the record herein clearly shows the rent free use of the exceptorindorsee’s property and the indorsing of the stock certificate in question by the decedent indorser, certainly adequate consideration.

This Court therefore concludes that the fact situation presented in the instant matter, dovetails in every particular with the provisions of §1705.13 R. C. and for this reason, it is the opinion of this Court that the exceptions filed to the inventory and appraisement herein, are well taken and that the 165 shares of Lavoris Company Stock should be excluded from the inventory and appraisement herein and said stock should be placed in the hands of the exceptor herein, Dr. Wilford Wood.

An entry in conformity with this opinion should be drawn forthwith.


text:
    PILAT, Plaintiff-Appellant, v. BUREAU OF UNEMPLOYMENT COMPENSATION, BOARD OF REVIEW, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7672.
    Decided January 19, 1953.
    Francis X. Schwegmann, Cincinnati, for plaintiff-appellant.
    C. William O’Neill, Atty. Geni., William A. Banks, Asst. Atty Geni., Columbus, for defendant-appellee.
   OPINION

By THE COURT:

The plaintiff seeks to recover unemployment compensation from the defendant. In his application to determine the benefits and rights, he alleged that his last employer was Friars Club, and the nature of his work was that of pin-boy in its bowling alley.

The record shows that applicant had been previously employed by Central Turners and had filed an application for, and been allowed compensation after severance of that employment.

The record fails to show that Friars Club conforms to the definition of an employer as that term is defined in §1345-1 GC.

The administrator disallowed the claim on the ground that the claimant had not earned wages with an employer covered by the Ohio Unemployment Compensation Act since the date of his previously allowed application. On appeal, the referee at first concluded that compensation should be allowed, but within ten days thereafter, and within the time within which an appeal could be taken under §1346-4 GC. reversed his decision and affirmed the administrator’s decision disallowing the claim.

On appeal to the Board of Appeals, that Board affirmed the decision, disallowing the claim. In reaching this conclusion, the Board states that “there is no dispute in regard to the Friars’ Club not being a covered employer” as that term is defined in §1345-1 GC. That left only the question of the meaning of “Wages” as that term is defined in the same section.

The Board reached the conclusion that “Wages” meant compensation paid by a covered employer, which, we think, was a correct conclusion.

The Board then concluded that as the claimant had received no compensation from a covered employer since his employment by Central Turners upon which he had based his prior application, he had not proven a case for, and was not entitled to an award.

We are of the opinion that the Court of Common Pleas did not err in affirming the decision of the Board of Review.

The judgment is affirmed.

HILDEBRANT, PJ, MATTHEWS, J, concur.


author: By GESSAMAN, J.

text:
    MOYER, Plaintiff-Appellee, v. MERCHANTS FIRE INSURANCE COMPANY, Defendant-Appellant.
    Common Pleas Court, Franklin County.
    No. 184809.
    Decided May 15, 1952.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant-appellant.
    Henry A. Reinhard, Columbus, for plaintiff-appellee.
   OPINION

By GESSAMAN, J.

This case is submitted to this Court on appeal from a judgment for the plaintiff in the Municipal Court of Columbus. Briefs have been submitted by counsel for both parties and have been considered by the Court.

In the petition filed in the court below it is alleged that plaintiff was the owner of real estate known as 136 North Princeton Avenue, Columbus, Ohio, and that the defendant insured the buildings upon said real estate against loss or damage by fire to the amount of $4000.00 from January 22, 1947 to January 22, 1950; that on June 19, 1948, said building was damaged by fire in the amount of $1000.00 and that “on the 12th day of June, 1948, plaintiff notified the defendant of said fire and loss and that the defendant’s agent, Paul Talbott, personally inspected said building and examined the loss * * *” It is further alleged that “plaintiff has duly performed all the conditions on her part to be performed * * *” but that no part of said loss has been paid although. demand therefor has been made. Plaintiff prayed judgment in the sum of $1000.00 and costs.

To this petition the defendant filed its answer in which, among other allegations, there is filed a general denial. For reasons which will be apparent later, the other allegations of the answer will not be discussed nor will the supplemental answer which was subsequently filed by the defendant.

•The policy of insurance to which the plaintiff referred is found in the Bill of Exceptions as defendant’s Exhibit “B” and contains the following pertinent provisions:

“The insured shall give immediate written notice to this company of any loss, * * *” (Lines 90 and 91 of Exhibit “B”)

Also at lines 97 to 103 inclusive of defendant’s Exhibit “B”:

“* * * and within sixty days after the loss, unless such time is extended in writing by this Company, the insured shall render to this Company a Proof of Loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: The time and origin of the loss, the interest of the insured and of all others in the property, the actual cash value of each item thereof and the amount of loss thereto, * *

Also at lines 157 to 160 inclusive:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, * *

These allegations are important in view of the allegation in the petition that “Plaintiff has duly performed all of the conditions on her part to be performed * *

It is well settled in this state that the first two provisions of the policy above referred to are conditions precedent to recovery of any loss. As early as 1878 it was decided by the Supreme Court in the case of Union Insurance Company v. McGookey, et al., 33 Oh St 555, that notice of loss is a condition precedent to a right of action on the policy. The 3rd syllabus of that case reads as follows:

“Where a policy requires notice of a loss to be given to the insurer immediately after the fire, such notice is a condition precedent to a right of action on the policy; but in such action, under the provisions of section 121 of the code, it is a sufficient averment of the performance of the condition for the plaintiff to state in his petition that he has performed all the conditions on his part to be performed.”

This same rule was enunciated by the Supreme Court in the case of Kornhauser, Receiver, etc., v. The National Surety Company, 114 Oh St 24, the 3rd syllabus of which reads as follows:

“A contract between an employer and a bonding company provides that the employer shall, within a given time after becoming aware of any evidence of dishonesty of any employe, give notice thereof to the surety. This provision constitutes a condition precedent, and when the employer fails to comply therewith he cannot recover even though the defalcation described in the bond, by employes covered by the bond, has taken place and loss has ensued.”

In spite of the allegations in the petition, there is no evidence that the plaintiff gave immediate written notice to this company of any loss or that she gave any written notice to the company. There is some evidence in the record that either she or her daughter called or talked to a brother who was employed by a local agent of the company and that she talked with someone at the office of the Western Adjustment Company. These conversations, whatever they may have been, of course do not constitute a written notice to the company.

It is settled in this state that the provisions of written notice cannot be waived by an agent of the company who does not have specific authority so to do. This principle has been established by the Supreme Court in the case of Travelers’ Insurance Company v. Myers and Company, 62 Oh St 529 in Syllabus 2:

“In a policy which insures against loss from liability to employes of the insured who may accidentally sustain bodily injury while in the employ of the insured, ‘under circumstances which shall impose upon the insured a common law or statutory liability to such employes by reason thereof,’ a stipulation as follows: .‘Immediate written notice shall be given this company of any accident and of all alleged injuries, together with copies of all statements made by employes, and all other information in possession or knowledge of the insured in any way relating to such accident or liability therefor,’ is of the essence of the contract and cannot be waived by an agent of the company without authority therefor.”

It is also an established rule that notice to an agent who does not have or is not shown to have authority to receive such notice, is not notice to the company. This rule was expressed by Judge Pollock in the case of Fireman Insurance Co. et al, v. Barnardi, 14 Abs 426, at p. 427 of the Opinion in the following language:

“It is first urged that even if notice was given, it was only given to the local agents, and there is no evidence that they had any authority to receive notices of loss, and without that authority notice to an agent would not be a compliance with the provisions of the policy. Many cases might be cited in support of this contention, but the case of Myers v. Insurance Company, 108 Oh St 175, will suffice.”

In addition to the absence of any evidence of giving immediate written notice 1¡o the company of loss, it is also established by the evidence (found at pages 23 and 24 of the Record), that no Proof of Loss or sworn statement of loss was ever given to the company. With this factual situation before us, it is apparent that the plaintiff has failed to comply with the two conditions precedent, the one the giving of immediate written notice of loss and the other one the giving, within sixty days after loss, of a proof of loss. It is clear, therefore, that plaintiff has failed to place herself in a position which would justify a judgment in her behalf. '

It is claimed, however, by counsel for appellee that by certain actions the defendant has waived these two conditions precedent. On this question we again call attention to the allegation in the petition that “Plaintiff has duly performed all of the conditions on her part to be performed

It is well established that the claims of performance and of waiver are incompatible and that where performance has been pleaded, evidence of waiver is improper and immaterial. In the case of Hartford Accident and Indemnity Company v. Kenny, 44 Oh Ap 138, Judge Sherick used the following language at p. 146 of the Opinion:

“The amended petition pleads performance. It does not plead waiver. These two affirmative allegations are incompatible. If one is true, the other cannot ordinarily be true, and in the case before us, in the absence of amendment, such evidence for the purpose of showing waiver was improper. We do not feel that this well settled rule need be fortified by recital of authority.”

The same rule was pronounced by the Supreme Court in the case of Eureka Fire and Marine Insurance Company v. Baldwin, 62 Oh St 368, in syllabus 1 which reads as follows:

“Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings.”

And, again, in the case of The List and Son Company v. Chase, 80 Oh St 42, we find the same rule in Syllabus 2 of the Opinion:

“Waiver of the performance of conditions in a contract by the party in whose favor the conditions are to be performed, is not performance but must be alleged as an excuse for non-performance, before proof of such waiver can be received; and in the absence of such an allegation it is error to charge the jury that certain facts appearing in evidence constitute such a waiver. Eureka Fire and Marine Ins. Co. v. Baldwin, 62 Oh St 368, approved and followed.”

It is also well established that the doctrine of Equitable Estoppel may not be claimed since it is not pleaded and to this effect we refer to the case of Dow, et al. v. The Union National Bank, et al, 87 Oh St 173, in which the following language was used by Judge Shauck at page 179 of the Opinion:

“Counsel for Mrs. Dow present the unusually sound view that the facts out of which an equitable estoppel is claimed to arise must be pleaded if there is opportunity, and there was opportunity in the present case.”

In view of the fact that plaintiff has relied upon performance, it is necessary that performance be proved before recovery can be had. As we have pointed out, the evidence does not disclose performance of either of the two very essential conditions precedent. Furthermore, since performance has been alleged the plaintiff may not rely upon a' waiver of these conditions under the well established rules to which we have already made reference.

To summarize the situation, the plaintiff has alleged, but has failed to prove performance of the two conditions precedent. Having alleged performance, she cannot now recover upon either the theory of waiver or equitable estoppel. It follows, therefore, that she cannot recover under the well established rules of law which have been discussed and further, because of the condition of the policy (lines 157-160) to which reference was made earlier in this decision.

In view of the decision herein reached, we deem it unnecessary to consider or discuss the other assignments of error. The judgment of the Municipal Court is reversed and this cause is remanded to that court with instructions to enter judgment for the defendant.


author: By THE COURT.

text:
    MOYER, Plaintiff-Appellant, v. MERCHANTS FIRE ASSURANCE CORPORATION OF NEW YORK, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4831.
    Decided February 23, 1954.
    Henry A. Reinhard, Columbus, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Arthur I. Vorys, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court reversing that of the Municipal Court of Columbus, Ohio, in favor of the plaintiff, for the sum of $1000.00. The action was one wherein the plaintiff sought to recover the fire loss sustained by her to a certain building upon which the defendant, the Merchants Fire Insurance. Company, had issued its policy of insurance and which was in full force and effect at the time of the loss. The petition alleges that “plaintiff has duly performed all the conditions on her part to be performed,” which proof must be established before recovery may be had unless the same was waived by the insurance company. The Common Pleas Court, in a well considered opinion, pointed out that the policy required that immediate notice of loss must be given to the insurance company and that within 60 days thereafter, unless such time was extended by the company, a proof of loss must be given to the company, the same to be signed and sworn to by the insured. It held that these two notices were required by the terms of -the policy, to be given by the insured before the action could be maintained. Our examination of the record is in accordance with the finding by Judge Gessaman, that it fails to disclose that the required notices were given to the insurance company.

The plaintiff attempted to prove notice and also urges that the record discloses that the company waived these requirements. The Court was of the opinion that since waiver was not pleaded that the same could not be considered. Citing The Eureka Fire and Marine Ins. Co. v. Baldwin, 62 Oh St 368; and The List & Sons Co. v. Chase, 80 Oh St 42. These cases support the Court’s conclusion. In view of the decision of the Common Pleas Court the plaintiff now asks this Court for permission to amend the petition to conform to the evidence, by pleading waiver and disclaimer by the insurance company. The power of a court to amend a pleading is found in §11363 GC, which in part provides that,

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading * * *, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding to the facts proved * * *.”

We are of the opinion that the application to amend at this time should be overruled for two reasons: First, the proven facts do not support the same; second, we think the power to amend pleadings is restricted to the trial court and may not be exercised by a reviewing court where the appeal is on questions of law only, which is this case. According to the case of Gheen v. Dalonzo, 33 Abs 94, even for the trial court to attempt to amend the pleading at this date would constitute an abuse of discretion. The second paragraph of the syllabus of this case provides:

“The trial court’s granting leave to counsel for defendant without notice to opposing counsel to file amended answers six months after the jury verdict, three months after' judgment and two weeks after the appeal has been lodged in the Court of Appeals, constitutes an abuse of discretion.”

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

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


text:
    THOMPSON et, Plaintiffs, v. ALLEN, Admr. et, Defendants.
    Common Pleas Court, Franklin County.
    No. 190925.
    Decided November 8, 1954.
    Miller & Miller, Columbus, for appellants.
    George L. Dixon, Columbus, for appellee.
   OPINION

By BARTLETT, J.

1. No appeal bond having been filed as required by law, the Court sustains the motion of appellee, and dismisses the appeal on questions of law and fact from the Probate Court of this county.

2. Since §2101.42 R. C. (§10501-56 GC) specifically governs appeals from the Probate Court to the Common Pleas Court, the general provisions relating to appeal in §2505.03 R. C. (§12223-3 GC), affects only such cases within those general provisions as are not within the provisions of §2101.42 R. C. (§10501-56 GC.)

Consequently, the provision of §2505.23 R. C. (§12223-22 GC), allowing an appeal on questions of law and fact to stand as an appeal on questions of law in certain instances, has no application to an appeal on questions of law and fact from the Probate Court to the Court of Common Pleas.

3. The Probate Court is not a court, “inferior to the Court of Common Pleas” within the meaning of §2505.24 R. C. (§12223-23 GC); and the Common Pleas Court has no jurisdiction to hear appeals on questions of law from the Probate Court under that section. Jurisdiction to hear such appeals is vested exclusively in the Court of Appeals under §§2101.42 and 2505.27 R. C., and said §2101.42 R. C., supra, expressly provides, “For the purpose of prosecuting appeals on questions of law and questions of law and fact from the Probate Court, the Probate Court shall exercise judicial functions inferior only to the Court of Appeals and the Supreme Court.”

4. Sec. 2101.42 R. C., supra (§10501-56 GC), intended to provide an appeal to the Common Pleas Court from the Probate Court on questions of law and fact, only where a “record” had not been taken, “so that a bill of exceptions or a complete record may be prepared” as provided by law in Courts of Common Pleas. It is apparent such purpose of this statute cannot be accomplished by retaining the case as an appeal on questions of law, since a bill of exceptions cannot be prepared in the absence of a hearing on the facts, etc.

This matter is before the court on a motion by the appellee as administrator of the estate of Ollie Rader Broce, deceased, to dismiss the appeal filed in this Court, on questions of law and fact on two orders of the Probate Court of this county. ' These orders were made upon complaint of said administrator of concealment of assets of said estate by the appellants; and said Probate Court first ordered certain assets returned to said administrator within ten days, and upon failure to comply therewith said Court then fixed the value of the assets at $500.00, and made a finding in favor of said administrator in that sum against the appellants with a ten per cent penalty and costs.

Said appeal to this Court is based on the fact that no record was taken in the Probate Court and requests a trial De Novo. The orders of the Probate Court appealed from were entered on the 20th of September, 1954, and as of the 11th day of June, 1954, by a nunc pro1 tunc order filed August 3, 1954.

The motion to dismiss the appeal is based, upon the fact that no appeal bond was filed within the time required by §2505.06 R. C., and that said attempted appeal was not perfected within twenty days after the filing of said orders as required by §2505.07 R. C.

Counsel for appellants concede, that the no appeal bond was filed as required by law, and that consequently the appeal on questions of law and fact must be dismissed; but insist that such appeal shall stand for hearing on appeal on questions of law.

Sec. 2505.06 R. C., provides

“No appeal shall be effective as an appeal upon questions of law and fact until the order, judgment or decree appealed from is superseded by a bond in the amount and with the conditions provided in §§2505.09 and 2505.14 R. C., and unless such bond is filed at the time the notice of appeal is required to be filed.”

Sec. 2505.04 R. C., provides,

“An appeal is perfected when written notice of appeal is filed with the lower court”;

and §2505.07 R. C. requires:

appeals “from probate courts to courts of common pleas, shall be perfected within twenty days.”

“1. When an appeal is taken on questions of law and fact, but no appeal bond is given as required by §12223-6 GC (now §2505.06 R. C.), the appeal is ineffective as an appeal on questions of law and fact, but stands for hearing as an appeal on questions of law.

“2. When an appeal on questions of law and fact is ineffective and the case is retained as an appeal on questions of law, and no bill of exceptions has been filed, the reviewing court is required under the provisions of §11564 GC (§2321.05 R. C.), to fix a time for the preparation and settlement of a bill of exceptions, which shall not exceed 30 days.”

Enox v. Enox, 83 Oh Ap 138, Court of Appeals, 2nd District; Kohler v. Sears, Roebuck and Co., 84 Oh Ap 98; Realty Co. v. City of Cleveland, 140 Oh St 432.

Sec. 2505.23 R. C., provides:

“Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to re-try the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law.”

Counsel for appellants plant their right to an appeal on questions of law, on this provision of the law, notwithstanding that it be conceded that appellants are not permitted to re-try the facts due to their failure to file their appeal bond within the time required by law.

Sec. 2505.24 R. C., provides:

“A judgment rendered or final order made by a justice of the peace or any other tribunal, board, or officer, exercising judicial functions, and inferior to the court of common pleas, may be reversed, vacated, or modified by the court of common pleas upon an appeal on questions of law.” (Emphasis ours.)

Sec. 2505.27 R. C., provides:

“A judgment rendered or final order made by a court of common pleas, a probate court, or by any other court of record, or by a judge of any of such courts, may be reversed, vacated, or modified for errors appearing on the record, upon an appeal on questions of law, by the court of appeals having jurisdiction in the county wherein such court of record is located.”

Sec. 2505.03 R. C., provides:

“Every final order, judgment, or decree of a court and, when provided by law, the final order of any administrative officer, tribunal, or commission may be reviewed as provided in §§2505.04 to 2505.45, inclusive, R. C., unless otherwise provided by law, except that appeals from judgments of justices of the peace upon questions of law and fact shall be taken as provided in §§1921.01 to 1921.16, inclusive, R. C.” (Emphasis ours.)

Sec. 2101.42 R. C., provides:

“An appeal on a question of law and fact may be taken to the court of Appeals in all cases in which such court has appellate jurisdiction. Such appeal may be taken from any order, decision, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner and within the time provided for the prosecution of such appeals from the court of common pleas to the court of appeals. The cause appealed shall be tried and decided in the court of appeals as provided in §§2505.01 to 2505.45, inclusive, R. C.

“From any final order, judgment, or decree of the probate court, an appeal on a question of law may be prosecuted to the court of appeals in the manner and within the time provided for the prosecution of such appeals from the court of common pleas to the court of appeals. For the purpose of prosecuting appeals on questions of law and questions of law and fact from the probate court, the probate court shall exercise judicial functions inferior only to the court of appeals and the Supreme Court. If a record has not been taken at the hearing of any matter before the probate court so that a bill of exceptions may be prepared as provided by §§2321.02 to 2321.16, inclusive, R. C., then an appeal on questions of law and fact may be taken to the court of common pleas from any order, decision,, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner provided for the prosecution of such appeal from the court of common pleas to the court of appeals. The court of common pleas shall advance said matter for hearing.”

Sec. 2101.42 R. C. (§10501-56 GC), — it will be seen provides for an appeal on a question of law and fact from the Probate Court to the Court of Appeals, as well as solely on a question of law. It then includes the following provision:

“If a record has not been taken at the hearing of any matter before the probate court so that a bill of exceptions may be prepared as provided by §§2321.02 to 2321.16, inclusive, R. C., then an appeal on questions of law and fact may be taken to the court of common pleas from any order, decision, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner provided for the prosecution of such .appeal from the court of common pleas to the court of appeals.”

In other words, §2101.42 R. C. (§10501-56 GC), “intended to provide an appeal to the Common Pleas Court, only where a ‘record’ had not been taken ‘so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas.’ ” Steward v. Belt, et al., 152 Oh St 399, 401; In re estate of Schneider, 81 Oh Ap 233. It is apparent that such purpose of this statute would not be accomplished by retaining the case as an appeal on questions of law, since a bill of exceptions cannot be prepared in the absence of a hearing on the facts, and finally, if the case be retained as such an appeal on questions of law, the reviewing court is required under the provisions of §2321.05 R. C. (§11564 GC), to grant time to appellant within which to prepare and settle a bill of exceptions and file assignments of error. Kohler v. Sears, Roebuck and Co., and Enos v. Enos, supra. Of course, this mandatory requirement could not be complied with in the instant case because no record had been taken in the Probate Court.

“1. Sec. 10501-56 GC (118 Ohio Laws, 78) (§2101.42 R. C.), relating specifically to appeals from the Probate Court, is operative as to appeals from that court, and the general provisions relating to appeal in §12223-3 GC (118 Ohio Laws, 79) (§2505.24 R. C.), affect only such cases' within those general provisions as are not within the provisions of §10501-56 GC (now §2101.42 R. C.).” (Emphasis ours.)

In re Estate of Hamilton, 67 Oh Ap 242.

“1. The Probate Court not being a court ‘inferior to the Court of Common Pleas’ within the meaning of §12223-23 GC (§2505.24 R. C.) the Common Pleas Court has no jurisdiction to hear appeals on questions of law from the Probate Court under that section. Jurisdiction to hear such appeals is vested exclusively in the Court of Appeals under §12223-27 GC (§2505.27 R. C.).”

u* $ *

“3. Since by virtue of §12223-3 GC (§2505.03 R. C.) appeals from the Probate Court to the Common Pleas Court on questions of law and fact are governed by §§10501-56 to 10501-61, inclusive, GC (§2101.42 R. C. etc.), the provisions of §12223-22 GC (§2505.23 R. C.) allowing an appeal, on questions of law and fact to stand as an appeal on questions of law in certain instances, has no application to an appeal on questions of law and fact from the Probate Court to the Court of Common Pleas.”

Carl, Gdn. v. Schneider, 61 Oh Ap 147, Syl. 1 and 3.

“Even before passage of present §2101.42 R. C. (§10501-56 GC), but after the effective date of §2505.24 R. C. (§12223-23 GC), which replaced former §12241 GC, it was held that review on questions of law by the Common Pleas Court of judgments or final orders of the Probate Court had been abolished and that jurisdiction to reverse, modify, or affirm such probate judgments and orders had been vested in the Court' of .Appeals. And under the present form of §2101.42 R. C. (§10501-56 GC), there is no provision for an appeal on questions of law from the Probate Court to the Common Pleas Court.

2 O. Jur. 2d, Appellate Review, Sec. 16, p. 578.

The Court is, therefore, constrained to and does sustain the motion to dismiss the appeal for all purposes. Entry accordingly with exceptions by counsel for appellant.


author: By HOLTSBERRY, J.

text:
    LAKE LUMBER COMPANY, a Corporation, Plaintiff, v. WATSON et, Defendants.
    Common Pleas Court, Licking County.
    No. 42106.
    Decided January 3, 1956.
    J. Dale McNamar, Newark, on behalf of plaintiff.
    Joseph Fitzgibbon, James M. Schaller, Jr., Newark, on behalf of defendant Watson.
    Winston C. Allen, Newark, on behalf of defendant, C. S. Blauser.
   OPINION

By HOLTSBERRY, J.

This case was submitted to the Court upon the evidence and briefs of counsel. Questions before the Court concern the priority of two mechanics liens and a mortgage upon real estate in Licking County, Ohio.

It must be conceded that the mortgage was properly filed and that the necessary statutory steps were taken in perfecting the two mechanics liens.

The mortgage in question was dated and filed with the Licking County Recorder October 14, 1954, and four days later, to-wit: October 18, 1954, the mechanics lien of The Lake Lumber Company was dated and filed. The first of the materials furnished under said lien by The Lake Lumber Company were furnished August 31, 1954.

The other lien holder, C. S. Blauser drilled a well on said premises and the last labor he performed in drilling said well was furnished on June 23, 1953. He filed his affidavit for lien with the County Recorder on August 20, 1953, which was within 60 days from the date the last labor was furnished.

Mortgagee contends that the mortgage is a prior lien. The Lake Lumber Company contends that its lien should be prior to the mortgage, and co-equal with the Blauser lien. Blauser contends that his lien is prior to all others.

The Court, keeping in mind the various dates and facts found from the evidence has carefully reviewed the mechanics lien law of Ohio. The mechanics lien law should be liberally construed to effect the end it was intended to accomplish. Loss should not fall upon those whose labor and materials enhance the value of property of another. The right of such lien apparently unknown to the Common Law does seem to have been recognized by the early Roman civil law. In America the idea of protection by lien probably originated with statesmen in early American history, to encourage building the new capital city in Washington.

Present day statutes seek to do justice between all parties, while earlier statutes were loosely drawn and sometimes resulted in injustice. Our present statute was adopted from the Michigan statutes. Therefore Michigan decisions have been helpful to Ohio courts in questions involving interpretation.

A mortgage takes effect from the time of delivery to the recorder of the proper county for record. Mechanics’ liens arising in any particular job date from the time the first work was done. A mortgage filed for record prior to commencement of work on a construction project on land covered by the mortgage takes priority over contractors and materialmen’s liens subsequently acquired. Conversely, a mortgage filed for record where work is commenced is inferior to liens subsequently acquired where it is apparent the work began at the time the mortgage is filed. (Rider v. Crobaugh, 100 Oh St 88.)

The Lake Lumber Company having filed its mechanics lien within 60 days from the date the last material was furnished on September 7. 1954, and having served a copy of the affidavit as required by law, it must be concluded that The Lake Lumber Company lien takes priority over the mortgage to the William H. Watsons. The Lake Lumber Company is entitled to judgment in the amount of $445.77, with interest from September 7, 1954.

Blauser properly perfected his lien on August 20, 1953, which was around 14 months prior to the date and filing of the mortgage. Naturally, Blauser’s'lien is prior to the mortgage, and he further claims priority over the lien asserted by The Lake Lumber Company.

Sec. 1311.13 R. C., provides that if several liens are obtained by several persons on the same job, they have no priority among themselves except liens by persons performing manual labor for priority to 'the extent of labor performed during the 30 days immediately preceding the performance of the last labor.

It is the opinion and finding of fact by this Court that the Blauser well drilling was not the “same job,” since the defendant Blauser had completed his work' around 14 months prior to the plaintiff furnishing the materials to add rooms to the present structure on said premises. Further, Blauser’s claim is largely based upon labor. It is therefore the opinion of this Court that the Blauser lien takes priority over not 'only the mortgage, but also the lien of the Lake - Lumber Company.

The Court finds the amount of the Blauser lien to be $101.13, with interest from June 23, 1953.

The holders of these mechanics liens ask that their liens be satisfied or that the real estate be sold to satisfy same, and this Court will approve an entry ordering such.


author: By RICHMOND, J.

text:
    FRANTZ, a minor, Plaintiff, v. FLORENCE, Admr. et, Defendants.
    Common Pleas Court, Geauga County.
    No. 498130.
    John F. Curry, Harry L. Deibel, Cleveland, for plaintiff.
    Calfee, Fogg, McChord & Halter, Cleveland, for defendant.
   OPINION

By RICHMOND, J.

This is an action for declaratory judgment, the undisputed facts are:

Dr. Wm. M. Florence was the father of two sons, i. e. Wm. C. Florence and John T. Florence. Wm. C. Florence died on February 13, 1945, leaving surviving him one son, i. e. Wm. J. Florence who was born on August 10, 1943, and his widow Alice. In 1950 Alice .married Dr. M. J. Frantz; on April 15, 1953, Dr. M. J. Franz adopted the stepchild Wm. J. Florence and on April 6, 1954, Dr. Wm. M. Florence died intestate, unmarried, leaving surviving him his grandson Wm, J. Frantz, plaintiff, and his son John T. Florence, Defendant.

The question presented is one of law: Does the adoption statute in any way affect the grandson’s right to inherit from his grandfather of the blood under the statute of Descent and Distribution?

The two Ohio statutes which determine whether such an adopted ¡child has the right to inherit from his paternal grandfather are §§2105.06 and 3107.13 R. C.

Sec. 2105.06 R. C., the statute of Descent and Distribution provides in part as follows:

“When a person dies intestate having title or right to any personal property or to any real estate or inheritance in this state, such personal property shall be distributed and such real estate or inheritance shall descend and pass in parcenary a- * * in the following course:

“(A) If there is no surviving spouse, to the children of such intestate or their descendants per stirpes * * *”

No one will deny that the grandchild in the case at bar will inherit under this statute unless the statute of adoption denies inheritance.

Sec. 3107.13 R. C., provides as.follows:

“Except in the case of a natural parent married to the. adopting parent, the natural parents, if living, shall be divested .of. .all legal rights and obligations due from them to the child or from the .child to them, and the child shall be free from all legal obligations .of obedience or otherwise to such parents. The adopting parents of' the child shall be invested with every legal right in respect to obedience .and maintenance on the part of the child, and the child shall be. invested with every legal right, privilege, obligation, and relation in respect to education and maintenance as if such child had been born to them in lawful wedlock. For all purposes under the laws of this state, including without limitation all laws and wills governing inheritance of and succession to real or personal property and the taxation of such inheritance and succession, a legally adopted child shall have the same status and rights, and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born to the natural parents; provided:

“(A) Such adopted child shall not be capable of inheriting or succeeding to property expressly limited to heirs of the body of the adopting parents.

“ (B) In case of adoption by a stepfather or stepmother, the rights and obligations of the natural parent who is the spouse of the adopting step-parent shall not in any way be affected by such adoption.

“This section does not debar a legally adopted child from inheriting, under a will identifying such child by his adopted name, or later acquired name, property of such child’s natural parent or parents or other natural kin as in case of bequest or devise to any other person.

“For the purpose of inheritance to, through, and from a legally adopted child, such child shall be treated the same as if he were the natural child of his adopting parents, and shall cease to be treated as the child of his natural parents for the purposes of intestate succession.”

This proceeding involving the construction of §3107.13 R. C., apparently is one of first impression in this state.

Plaintiff in his brief has traced the history of the adoption statutes from 1859 to the present time and contends the last clause of §3107.13 R. C. debars intestate succession from natural parents only, and from no other blood kin; that the last clause is exclusively confined to the child, to its natural parent and its adopting parents and since the adoption statute does not expressly debar a legally adopted child from inheriting from blood kin except the natural parents, a grandson inherits from his grandfather.

Since the question in the case at bar is whether or not the adoption statute is specific in its wording as to right of an adopted child to inherit from his grandfather, let us review that part of the language of the statute that applies to the factual situation by deleting the words and phrases of the statute that do not apply.

«* * * F0r all purposes under the laws of this state, including without limitation all laws * * * governing inheritance of and succession to real or personal property * * *. a legally adopted child shall have the same status and rights and shall bear the same legal relationship to the adopting parents as if born to them in lawful wedlock and not born' to the natural parents, provided;

“For the purpose of inheritance to * * * a legally adopted child, such child shall be treated the same as if he were the natural child of his adopting parents, and shall cease to be treated as the child of his natural parents for the purposes of intestate succession.”

There is no question but what the Legislature has the power to control the manner in which property shall descend and be distributed. The right to inherit property is not an inherent or natural right, it is entirely statutory. The Legislature may create and change the right of inheritance as it sees fit (129 Oh St 625). It is the conclusion of the Court that the language of the adoption statute (§3107.13 R. C.) is clear that an adopted child ceases to be the child of his natural parents for the purpose of each and every possibility of inheritance under the statute of Descent and Distribution; that the blood line is completely severed; that Wm. J. Frantz, the plaintiff herein, is precluded from inheriting a share of his grandfather’s estate under the law.

While it is a harsh rule under the circumstances found herein, the social purpose or lack of purpose of the enactment of the statute by the Legislature is not for the consideration of this Court.

The attorney for the defendant may submit an entry conforming herewith. Exceptions.


author: By HARTER, J.

text:
    CLAYCRAFT COMPANY, Plaintiff, v. LOWE, Defendant.
    Common Pleas Court, Franklin County.
    No. 183331.
    Decided March 14, 1952.
   OPINION

By HARTER, J.

ON APPEAL FROM JEFFERSON TOWNSHIP, JUSTICE OF PEACE COURT AFFIRMED.

From an examination of the record before us on appeal, it appears that the alleged tenant claims that he signed a printed “Lease” form, which contained several blank spaces, at the request of the officials of the company by which he was employed at the time of the signing. It seems to be the implication of the defendant’s argument in this forcible detention case that the original printed lease was an ineffectual obligation and that it had been superseded by month-to-month oral tenancy arrangements between the employing corporation and the defendant, as the first tenant in time, and then later, with one of his sons and then, still later in time, with another son who is even now a minor.

In this situation, and since neither of the sons are parties to this litigation, it becomes necessary that we attempt to appraise the rights of the parties under the original printed lease, assuming for these purposes that there actually were blank spaces in that lease when the defendant affixed his signature to it.

To give our conclusion first, we believe that lease is valid and binding as between the parties to it. It is not necessary that we consider the rights of third parties under our view as there are, as we see it, no third party rights involved.

Our authority for arriving at this conclusion is expressed in the following statement of the general rule as found in — 17 Corpus Juris Secundum, Contracts, Section 65:

“A writing is incomplete as an agreement if blanks as to material matters are left in it, unless the omission may be supplied from other parts of such writing or the blanks are subsequently and lawfully filled. Blanks may be rejected as surplusage if the parties so intend.”

In that section, it is further recited that:

“The fact * * * that a contract contains blanks when signed does not necessarily invalidate it, and * * * one signing a paper and leaving blanks in it is ordinarily presumed to give authority to the holder to fill the blanks in accordance with the general character of the instrument, and parol is sufficient to authorize the filling of blanks in writings not under seal * *

This rule (to the effect that the person signing an instrument containing blanks impliedly authorizes the holder of the instrument to fill in such blanks) finds exemplification and approval in the following Ohio eases:

Fullerton v. Sturges, 4 Oh St 529; Selser v. Brock, 3 Oh St 302; Dater v. Simon & Co., 5 O. Dec. Rep. 377, 7 O. Dec. Re. 215.

Under this authority, we consider the lease, as originally signed by defendant and partially filled in thereafter by the employing — landlord as an effective and enforceable instrument. One of the paragraphs in the lease is:

“Tenant shall not assign or sublet premises without written consent of lessor. This lease may be terminated by either party by giving thirty (30) days’ notice and shall terminate at the expiration of thirty (30) days after tenant shall cease for any reason whatever to be employed by lessor.”

If, under our theory, this obligation is valid and enforceable, we are enabled easily to come to the conclusion that the landlord showed a clear right at the trial in the court below to possession of this property and the judgment entered in accordance with that right. There was no showing of “written consent of lessor" to any assigning or subletting of the premises. Indeed, no oral consent thereto was actually shown. It takes positive evidence of a novation — i. e. two parties, affirmatively assenting to a new tenancy relationship to create obligations. We hold that the setting-up of a mere mechanical arrangement of paying rent money (unilateral as it seems to have been through defendant’s sons and son-in-law and without overt action by any adequately authorized representative of the landlord corporation) did not change the parties contractual obligations.

The problem of “clearance” of this forcible entry case through the Area Rent Office is, to say the least, not clearly stated in the briefs or in the Bill of Exceptions. When we examine pages 21 to 24, inclusive, of the Bill of Exceptions, we gather that “clearance” through the Area Rent Office had been obtained by the plaintiff and that counsel for the defendant was willing to stipulate as to some official letter which was not physically present at the time and place on trial. The plaintiff reserved the right to offer additional evidence on this point. At the conclusion of the trial, the Justice of the Peace and counsel for both parties agreed that “any further evidence submitted to this court pertaining to this case shall be mailed to me (i. e. the Justice) before the period of ten days has elapsed.” (p. 37.)

With that agreement, the Bill of Exceptions and the Transcript arq silent as to what, if any, attempts were made on behalf of the defendant affirmatively to raise again this Area Rent Office “clearance” problem. We believe this burden rested upon the party asserting this error. Since the claimed error is not shown positively in the record now before us, we feel compelled to affirm the lower court on this point.

Indeed, we find no error prejudicial to the defendant-appellant on this record and therefore the lower court’s judgment is affirmed.


text:
    LUGGER, Plaintiff-Appellant, v. WOLFORD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5066.
    Decided February 24, 1955.
    John E. Palcich, Columbus, for plaintiff-appellant.
    John P. Moloney, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio. The action is one for damages arising out of a collision between two automobiles. The defendant denied all allegations of negligence set forth in the petition and also filed a cross-petition charging the plaintiff with certain acts of negligence resulting in damages to the defendant. The case was tried to the court without the intervention of a jury and a judgment was rendered for the defendant at plaintiff’s costs and the cross-petition was dismissed.

A request for separate findings of fact and conclusions of law was seasonably filed which resulted in the following finding:

“The court finds as a matter of fact, acting as a jury, that neither party, plaintiff nor defendant, proved by a greater weight or a preponderance of the evidence, their petition or the cross-petition; therefore, as a conclusion of law, the verdict of the court is for the defendant and the cross-petition of the defendant is ordered dismissed. All at plaintiff’s costs.”

The only error assigned is that the finding is not in accordance with law, the appellant contending that it is merely the court’s legal conclusion and contains no factual findings. Our analysis of the same is in accord with the views of the appellant as to the contents of the finding, so the question then presented is whether the finding properly accounts for the court’s failure to make a finding of facts. We think it does. It states that neither party proved by the proper degree of proof “their petition or cross-petition.” If no pertinent facts were proved it must follow that there could be no factual finding and a finding of admitted facts is not required. Bauer v. Cleveland Ry. Co., 141 Oh St 197.

The judgment will be affirmed.

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


author: By GRIFFITH, J.

text:
    ROUSH, Plaintiff-Appellee, v. HILLMAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5123.
    Decided November 1, 1954.

      Knepper, White, Richards, Miller & Roberts, Andrew J. White, Jr., Dale F. Miller, of Counsel, Russ Bothwell, Columbus, for plaintiffappellee.
    Jenkins, Williams, Wendt, Murray & Deeg, Gordon E. Williams, of Counsel, Columbus, for defendant-appellant, Home Dairy.
    (MONTGOMERY, PJ, of the Fifth District, GRIFFITH and NICHOLS, JJ, of the Seventh District, sitting by designation.)
   OPINION

By GRIFFITH, J.

This is an appeal on questions of law by defendant Home Dairy from a judgment entered jointly against it and defendant Byron W. Hillman in the Court of Common Pleas. Plaintiff brought this action for personal injuries against the two joint defendants. Upon trial the plaintiff recovered a verdict in the sum of $8750.00 against both and judgment was rendered thereon.

The collision occurred on U. S. route 33, two and one-half miles north of Lancaster, on Sunday, June 17, 1951, at about 10:00 o’clock in the morning. Plaintiff was riding in the rear seat of a Chevrolet automobile being operated in a southerly direction by his wife. Byron Hillman, one of the defendants, was driving his own Dodge dump truck in a northerly direction and the truck of the other defendant, Home Dairy, was being operated in the same direction by one of defendant’s employees, John Anderson.’ The accident involved a collision between the northbound Dodge dump truck being operated by the defendant Hillman and the southbound Chevrolet. At the time of the collision the Home Dairy truck was south of the point of collision and it neither struck nor was it struck by either of the other vehicles. The highway is two-laned about 21 feet in width. The collision occurred a few feet north of a culvert. The distance between the rails on the culvert is 30 feet. The approach to the culvert for northbound traffic is down grade from the crest of the hill which is something over 800 feet south therefrom. The road declines for a distance of about 450 feet to the Lithopolis road which joins route 33 from the west. At Lithopolis road route 33 levels out and is level a distance of about 450 feet to the point of collision. The highway makes a long sweeping curve to the east or right as one passes Lithopolis road traveling north.

Defendant Hillman’s truck had been following the Home Dairy truck for some distance prior to reaching the crest of the hill. After Hillman had passed the crest oí the hill he attempted to pass the Home Dairy truck and according to his testimony he had completed the overtaking and passing of the truck when the southbound Roush Chevrolet automobile, which was approaching from the north went out of control, swerved across the highway and into his path and struck his truck. There appears little dispute as to the fact that the driver of the Roush Chevrolet lost control of it, traveling over 60 feet with the right wheels of the car off on the berm on the west side of the highway, and then, perhaps in attempting to regain control, it swerved diagonally across the highway in a half circular sweep into the northbound lane of travel. The record discloses that Anderson was driving the Dairy truck at a speed of less than 50 miles per hour prior to the collision and was on his own east traffic lane of the highway. After Anderson left the brow of the hill Hillman attempted to pass him. There is a specific duty imposed on Hillman to ascertain that the road is free of approaching traffic before he attempts to pass. Anderson was required to give way to the right in favor of Hillman and prohibited from increasing the speed of his truck until the passing has been completed. He must not attempt to prevent the passing by increasing his speed. The record is barren of any testimony that Anderson increased his speed. Anderson had a right to assume that Hillman had assured himself that his passing could be made with safety in that the road ahead was clear and free of approaching traffic for a sufficient distance. Swoboda v. Brown, 129 Oh St 512. As soon as he saw the Roush car approaching and became aware of the emergency he applied his brakes and the Dairy truck did not strike either the Roush automobile or Hillman’s truck. The crucial question in this case is this: Should Anderson at some earlier moment before he observed the Roush car have reduced his speed? Was there a duty imposed upon him under common law negligence to exercise ordinary care under the circumstances? If the conditions were such that ordinary care would prompt a reasonably prudent person to slow down to give Hillman a chance to pass him and get on the right side of the road before the Roush car interfered, was not that a question for the jury under all the evidence in the case? Plaintiff charges concurrent negligence on the part of both, defendants, that the defendant Hillman operated his truck to the left of the center of the road; that he failed to keep a lookout and operated his truck at a speed greater than was reasonable and proper and that he continued at an unabated speed after becoming aware of the peril of the impending collision.

The Home Dairy defendant is charged with operating the milk truck at a greater rate of speed than was reasonable and proper under the circumstances, to wit, 50 miles per hour, and that it continued at an unabated speed into the bridge or culvert with the view ahead obscured and on a curve. As to the charges against Hillman, except as they relate to the whole picture, we are not concerned since he did not appeal, the Home Dairy being the only appellant.

The Court charged that no person shall operate a motor vehicle upon the highways at a speed greater or less than is reasonable or proper having due regard to the surface or width of the highway and any other conditions. (See. 4511.21 R. C.) It also charged that an overtaken vehicle, at the overtaking vehicle’s audible signal, shall not increase the speed of his vehicle until completely passed by the overtaking vehicle. (Sec. 4511.27 R. C.) It also charged that no vehicle shall be driven to the left of the center line of the roadway overtaking another car unless such left side is clearly visible and is free from oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any traffic approaching from the opposite direction. (Sec. 4511.29 R. C.)

The Court in its charge said:

“On the other hand, it is charged that he drove at a speed greater than reasonable and proper, and continued at an unabated speed into and upon the bridge. Now, that brings up the question of whether he was guilty of what we know in law as negligence as a matter of common law, did he fail to exercise ordinary care, and ordinary care is the care as the ordinary, prudent person would exercise under the same or similar conditions. If the condition was such that ordinary care would prompt the ordinary, prudent person to slow down to give the overtaking vehicle a chance to get in on the right side of the road before the on-coming traffic would interfere, then that would be negligence, not as a matter of law, that is statutory law, but as a matter of common law. There was here an emergency and it is a question for the jury to determine under those circumstances, because of the oncoming vehicle there, whether it was the duty of Anderson to slow down to permit the other truck to get into the right side of the highway.”

The defendant Home Dairy insists that the contention that it should have reduced its speed at some earlier moment prior to the time that it became aware of the emergency, imposed upon it a duty which it did not owe and which at that time did not exist. Every rule of law must be construed in the light of existing conditions and surrounding circumstances. In the light of conditions as shown by this record, we are of opinion that it was a jury question and that the question was properly submitted to the jury for its determination. Beyond the duty imposed by statute (§4511.27 R. C.) Home Dairy was chargeable with exercising ordinary care under all the circumstances and its full compliance with this section of the Code did not absolve it from its common law duty. By its verdict in plaintiff’s favor against both defendants, the jury must have determined that Home Dairy in the operation of its truck prior to the time its driver Anderson became aware of the emergency, failed to exercise ordinary care and that his conduct directly contributed to the creation of the emergency and was a producing cause of the collision.

The fundamental rule is stated in Hamden Lodge v. Ohio Fuel Gas Co., 127 Oh St 469, wherein the 4th syllabus holds:

“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence.”

The evidence as a whole was such that reasonable minds could differ on this question.

The trial judge did not err to Home Dairy’s prejudice in overruling its motion for a directed verdict made at the close of all the evidence, nor in overruling its motion for judgment non obstante veredicto, and the judgment on the verdict is not contrary to law.

Judgment affirmed.

MONTGOMERY, PJ, NICHOLS, J, concur.