text:
    TANSKI, Plaintiff-Appellee, v. WHITE et, d. b. a. WHITE MANUFACTURING CO., Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22393.
    Decided March 17, 1952.

      R. A. Baskin, A. C. Knight, Cleveland, for plaintiff-appellee.
    Robert Merkle, Cleveland, for defendants-appellants.
   OPINION

By HURD, J:

This is an appeal on questions of law from a judgment entered in the common pleas court of Cuyahoga County in favor of plaintiff upon a jury verdict rendered in the sum of $2200.00.

Although the trial of the case commenced October 15, 1951 and extended through Oct. 18, 1951, and although there was presented the testimony of many witnesses, including two for plaintiff and eight for defendants, the record is silent as to the subject of their testimony. The bill of exceptions is an abbreviated one. It contains none of the evidence presented at the trial, being confined only to a transcript of the general charge of the court and certain proceedings thereafter concerning request of the jury for further instructions.

Counsel for appellants insistently asserts that the record in this abbreviated form is abundantly sufficient to demonstrate prejudicial error (a) in the general charge of the court to the jury and (b) in certain proceedings wherein it is claimed that the court failed to give additional instructions as provided by law.

It is well settled that a reviewing court cannot consider claimed error in a charge where the correctness thereof is dependent on evidence, in the absence of a bill of exceptions containing all the evidence. See Elser v. Parke, 142 Oh St 261, paragraph 4 of syllabus as follows:

“Where the correctness of the charge of the court to the jury is dependent upon the evidence and the bill of exceptions does not contain all of the evidence, a reviewing court cannot say that portions of the charge to the jury which are complained of were not properly given.”

See also: Hanauer Auto Co. v. Evans, 12 C. C. (N. S.) 512, affirmed without opinion in 86 Oh St 330.

But it is here claimed that the prejudicial error in the charge is so clear on the face of the record that no evidence is necessary to a demonstration of the same.

In the absence of a record setting forth the evidence adduced upon trial, whereby the claim of error in the charge may be adequately tested we must look to the issues developed by the pleadings and compare the same with the charge to determine whether or not prejudicial error is demonstrable on the face of the record.

Plaintiff’s petition alleged in substance that defendants, W. V. White and Judith White, were doing business as partners under the firm name of White Mfg. Co. at 17928 Hill-grove Ave., Cleveland, Ohio, and that they are indebted to plaintiff in the sum of $2529.66 for materials furnished and work, labor and services done and performed by plaintiff for the defendants at divers times between the first day of February, 1949 and the second day of July, 1949, inclusive, all at their special instance and request and to their full satisfaction.

Plaintiff further alleged that the materials furnished, work, labor and services performed for the defendants, were reasonably worth the sum of $2529.66 and that the sum of $273.00 had been paid by defendants, leaving a balance due and owing of $2256.66 for which judgment is prayed.

For his second cause of action, plaintiff avers that the work, labor and services performed by him and materials furnished at the special instance and request of defendants, were for the building of certain small boats designed to be used for amusement park purposes; that because defendants failed to pay the claim of plaintiff as aforesaid, he has retained possession of the last five of said boats and holds the same in his possession claiming the benefit of an artisan’s lien thereon.

To the petition of plaintiff, the defendant, W. V. White filed his answer denying that he and the defendant, Judith White, were partners doing business under the name of White Manufacturing Company, or any other name, and denying that he or the said Judith White are indebted to the plaintiff in any sum whatsoever, denying specifically that they, or either of them, ever requested plaintiff to perform any work or labor, or to furnish any materials for them or either of them, on or after the first day of February, 1949. For his answer to plaintiff’s second cause of action, defendant denies that the materials, work, labor and services performed, referred to in plaintiff’s petition, were at the instance or request or employment of the defendants, or either of them, and denies that plaintiff has, or is entitled to possession of the five boats by way of an artisan’s lien or any other kind of lien.

By interlineation, defendant avers that he and the plaintiff were partners in the business of manufacturing and selling the boats described in plaintiff’s petition.

Defendant, W. V. White, by way of cross-petition, incorporates the allegations of his answer, and alleges that he and the plaintiff entered into a partnership for the manufacture and sale of “Kiddie-Boat Rides” which are described at length in the cross-petition. He then alleges in substance that plaintiff’s function in said partnership was to assist the defendant in supervising the manufacture of said boats including supervision of the workmen and to work himself on the manufacture and delivery of said products; that it was defendant’s duty in said partnership to have charge of the purchases, sales, collections, payment of bills and general management of the business, as well as to work on the manufacture of said articles; that both plaintiff and defendant were to render said services for the benefit of said partnership without compensation, except for such profits as they might be entitled to receive from said business; that plaintiff and defendant were equal partners in said business and the profits, if any, were to be shared equally between them, and that in the event the business sustained losses, these were likewise to be equally borne and paid by them; that the partnership business was terminated on or about July 1, 1949.

Defendant further alleges that in connection with said business he collected the total sum of Forty Three Hundred and Twenty-Five Dollars ($4325.00); that he has expended for labor, materials and other expenses of said business, the total sum of $5494.06 and that he has withdrawn no money from said business, but that the plaintiff has withdrawn from said business the total sum of $349.41; that there are unpaid bills and that the business has resulted in losses and that the plaintiff is obligated to reimburse the defendant for one-half of the net losses of said business and that an accounting should be ordered between the parties. The cross-petition concludes with a prayer for such an accounting, for the dismissal of the plaintiff’s petition, and for determining and adjudging the amount due to the defendant from the plaintiff, and that judgment be entered in his favor for such amount.

The answer of defendant, Judith White, is in the form of a general denial, denying all of the allegations of plaintiff’s petition.

For his amended reply to the answers of defendants and in answer to the cross-petition of W. V. White, the plaintiff denies each and every allegation set forth in' the answers and cross-petition not before specifically admitted to be true.

We shall now consider in sequence the three grounds of error assigned by the appellant.

The first ground of error asserted is:

“1. The court erred in its instructions to the jury as to the elements of an implied contract.”

Counsel has selected an excerpt from the charge, consisting of one sentence, relating to the elements of an implied contract which it is claimed is prejudicially erroneous. The language of the court to which objection is made, reads as follows:

“A man may also work for another without an express contract, yet, if from all the surrounding facts and circumstances it is to be inferred that he performed his personal services with the expectation of receiving compensation either in the form of wages or salary, for his work, then an implied contract exists.”

The defendants then argue that this sentence, clipped from the general charge, is erroneous in that it does not contain all of the elements necessary to a complete definition of an implied contract. We must agree that the sentence, standing alone, is subject to criticism in that it fails to include the essential element of mutuality of assent requisite to an implied contract. Standing alone, this definition would entitle plaintiff to recover if he were a mere volunteer. It is not alone sufficient that a person perform services with the expectation of receiving compensation, but to encompass the principle of mutuality necessary to a contract implied in fact, it is elementary that the services be rendered, work performed, or materials furnished by one person for another under such circumstances that the party to be charged either knew or understood, or should have known or understood, that the services were given and received with the expectation of being paid for on the basis of their reasonable worth. This being so, the question arises, whether the part of the charge complained of, standing alone, constitutes prejudicial error. Here we must notice and adhere to a well recognized and established principle that upon review the charge must be taken as an entirety. If, from the whole charge, the law of the case appears to have been correctly stated to the jury, it will not be deemed prejudicially erroneous and the judgment may not be reversed because one sentence standing alone may be misleading or even erroneous. The law of Ohio on the subject is well stated in 39 O. Jur. (Trial), page 941-942, Sec. 261:

“The broad general principle is that the charge to the jury is to be considered as a whole; not piece-meal, and all parts harmonized, if possible, giving to the words and language their plain and ordinary signification. It is not proper to single out sentences or excerpts or take isolated sentences and statements and give them independent meaning, when, taken in connection with the whole charge they will have a different meaning.”

Again, in 2 O. Jur. (Appellate Review), Vol. 2 Part 2, page 1423, See. 755, where, supported by an exhaustive list of Ohio cases, the following comment is made:

“In determining the question of prejudicial error in the instructions of the trial court to the jury, the charge must be taken as a whole and the portion which is claimed to be erroneous must be considered in its relation to, and as affected by, the other parts of it. * * *. If from the entire charge, it appears that a correct statement of the law was given in such a manner that the jury could not have been misled, no prejudicial error can be held to have resulted. That a sentence may be clipped therefrom, which, standing alone, appears as error, is a condition which attaches to the expression of language in any form and instructions to a jury are no exception to the general rule. * * * Consequently, if the charge considered as a whole appears to be fair and proper and to state the law of the case correctly and in a way reasonably calculated to enable the jury to understand the rules of law which they are to apply to the evidence before them, the judgment will not be reversed because the language of some part of the charge may, if taken alone, be objectionable, or subject to criticism, or because some clause, sentence or paragraph standing by itself is erroneous, inaccurate, obscure, ambiguous or misleading or confusing.”

Before proceeding to an analysis of the issues raised by the pleadings, we desire to notice another proposition of law which briefly stated is that the factual conclusions of a trial judge in his charge must be presumed to be correct on review where the bill of exceptions does not contain the evidence in the case.

Bradley v. Cleveland Railway Co., 112 Oh St 35; Hines v. Office (Appeals), 21 Abs 553; Samuels v. Cinn. Traction Co., 26 O. Cir. Ct. (N. S.) 463.

The record here discloses certain factual conclusions of the trial court in his charge, which, in the absence of evidence, must be presumed to be correct upon this review, as follows:

“Now, then, what is the issue, or what are the issues that you must determine in this case? It is established without dispute that between the 1st or 2nd of February, 1949, and the 2nd of July, 1949, an amusement park device known as the Kiddie-Boat Ride was constructed in a building located at 21800 St. Clair Avenue in the City of Euclid, Ohio, and that this device consisted of five wooden boats, one of which boats was powered by gasoline motor, and these boats were attached to steel sweeps which rotated around a central or center axle and that axle was in the center of a circular canvas tank.
“It is further established that these Kiddie-Boat Rides were constructed during this period under the name of The White Manufacturing Company.”
“It is further established that the plaintiff, between February 1st or 2nd, 1949 and July 2, 1949, performed personal services consisting in part of woodworking, in part of manufacture or making of jigs and patterns and some other duties in connection with the construction of Kiddie-Boat Rides and that during the period in question, three, and only three of these units were completed. It is the claim of the plaintiff in this case that he performed these services during the time in question as an employee of either or both of the defendants, Judith White and W. V. White, doing business as the White Manufacturing Company.
“This claim of the plaintiff is denied by the defendants. In elaboration of their denial of the plaintiff’s claim, the defendants, W. V. White and Judith White assert that on or about the first or second day of February, 1949, the plaintiff and defendant, W. V. White, entered into an oral agreement of partnership, and that the services performed by the plaintiff were performed not as an employee, but as a partner of the defendant, W. V. White. These conflicting claims of the plaintiff and the defenadnt make up the issue in this case.”

In the absence of evidence, the appellants are not in a position to challenge the accuracy or correctness of the conclusions which the trial court states were established without dispute. Moreover, the issues as defined by the trial court are in complete harmony with the issues developed by the pleading's, for it will be observed from an analysis of the pleadings that an issue was clearly and sharply drawn as to whether or not an employer-employee relationship existed between plaintiff and defendants under which the materials, work, labor and services were performed and furnished, or whether as claimed by defendant, W. V. White, a partnership existed between the parties whereby they were to share equally in the profits and losses. In our opinion this was the essential and controlling issue made by the pleadings.

In this respect the cross-petition of W. V. White asserts affirmatively that the plaintiff was to furnish materials and render services under a partnership agreement and by clear implication concedes that such materials were furnished and services were performed because he claims the right of contribution from the plaintiff for losses of the alleged partnership venture. The defendants cannot blow hot and cold on this proposition at one and the same time. In this view of the case the lack of completeness of the quoted sentence in respect of the elements of an implied contract can not be considered as prejudicial. There is still another reason why the charge of the court cannot be considered prejudicially erroneous on this review.

By this action, plaintiff sought to recover compensation for materials, work, labor and services furnished to the defendants, at the special instance and request of defendant. This imports an express contract in relation to the employment and contemplates an employer-employee relationship. In the absence of an express agreement as to a specific amount to be paid for the services, the law implies a promise to pay what the services are reasonably worth. Relative to this and the relationship of the parties, the court charged:

“In connection with and in considering this issue (relationship of parties) you will bear the following rules of law in mind:
“First, neither a contract of employment nor a contract of partnership need be in writing. Second, a contract may be either express or implied or partly express or partly implied. An express contract is one in which the terms of the contract are explicitly and definitely agreed to. An implied contract is one in which the fact of the contract as well as the terms of the contract are inferred from all of the surrounding facts and circumstances. A man may work for another under an express contract. A man may also work for another without an express contract. Yet, if from all the surrounding facts and circumstances it is to be inferred that he performed his personal services with the expectation of receiving compensation either in the form of wages or salary for his work, then an implied contract exists.”

Thereupon the court defined correctly and in detail the essential elements of a partnership contract and continued with the charge as follows:

“If you find from a preponderance of all the evidence that the plaintiff performed the personal services during the time in question as a partner of the defendant, W. V. White, or if you find from a preponderance of all the evidence that the plaintiff has failed to prove that he performed these personal services as an employee of either or both of the defendants, then, in that event, you will find the issue in this case in favor of the defendants. Your deliberations will then be at an end and your verdict will be in favor of the defendants.
“But, if on the other hand, from a preponderance of ail the evidence, you find that the plaintiff during the time in question was an employee of either or both of the defendants, and that he performed his personal service as an employee of either or both of the defendants, doing business as the White Manufacturing Company, then you will find in favor of the plaintiff on the issue of this case and will return a verdict in his favor, against either or both of these defendants.”

In this state of the case and in viewing the charge in its entirety, we think that the trial court did not commit error prejudicial to the rights of defendants. Therefore, assignment of error No. One must be overruled.

This brings us to a consideration of the second ground of error asserted as follows:

“2. The court erred in not giving additional instructions to the jury after the jury returned to the court room and the foreman stated that the jurors ‘were slightly in doubt as to missing a few things down there.’ ”

A condensed statement of the record showing the proceedings when the jury returned to the court room, indicates that the court inquired as to whether the jury had arrived at a verdict. The foreman replied in the affirmative, then inquired if he could ask the court a question saying, “we were slightly in doubt as to missing a few things down there, I hope that is complete,” Thereupon, at the request of the court, a discussion was had between court and counsel out of the hearing of the jury and outside of the record. Thereafter, the court addressed the jury by reading to them verbatim from the verdict which was for the plaintiff against both defendants but in which the amount of the verdict was not inserted in the blank space provided therefor. He then stated to them in substance that if they intended by the verdict not to award the plaintiff any money they should sign a verdict for the defendants, but if they intended to return a verdict for the plaintiff and allow a specific sum of money, then the amount thereof should be inserted in the verdict. The court then inquired of the foreman if that answered any questions he may have had in his mind. To this the foreman answered, “Yes, Your Honor, except we didn’t have any exact figures.” The court then said, “Well, that will be something that you will have to work out from your recollection of the evidence and determine on the basis of what you finally conclude,” and instructed the jury to go out again with all the verdict forms and continue their deliberations. The jury foreman then made the following statement:

“The thing, Your Honor, we don’t want in any way, want to go- — the figures, no one thought to write down, you know, when you were ending up your summation before you sent us up. So, I think you stated several things there and we agreed on one, but — I mean, no one knew just exactly what to put down because we didn’t want to — I didn’t know any statement that would cover—

To this statement, .the court replied that under the circumstances he would ask them to continue their deliberations in accordance with the instructions he had given them and “see if you can, pursuant to those instructions, determine what you want to do in the matter.”

It is the contention of the defendants that the jury, through their foreman, was requesting additional instructions as to the law of the case. In our view, this contention is not supported by the record. The statements made by the foreman are rather indefinite and uncertain. It appears, however, that the inquiries were about evidence and particularly that part of the evidence summarized by the court in relation to the “figures” which the foreman stated “no one thought to write down.”

Sec. 11420-6 GC which defines the duty of the court in respect of additional instructions requested by the jury, reads as follows:

“After the jurors retire to deliberate, if they disagree as to the testimony, or desire to be further informed on the law of the case, they may request the officer in charge to conduct them to the court, which shall give the information sought upon matters of law, and also in the presence of or after notice to the parties or their counsel, may state its recollection of the testimony upon a disputed point.”

From this it may be observed that this statute makes it mandatory upon the trial judge to give additional information upon matters of .law but discretionary only to state his recollection of the testimony upon any disputed point.

Counsel for both the plaintiff and defendants cite and quote from the case of State v. Kennedy, 72 Oh Ap 462. In that case at page 468, Matthews, J., speaking for a unanimous court, said:

“Under §11420-6 GC, it is made the duty of the court to give the jury any additional information on the law requested by it, and may, but it is not required to, state its recollection of the testimony upon any disputed point. The jury should be given the opportunity which the law contemplates, to make a request.”

To the same effect see Fraser v. Hathaway, 71 Oh Ap 317.

In the instant case the jury was afforded every opportunity to make the request, as shown by the record. The foreman did not indicate any disputed point concerning the testimony, nor did he request any additional instructions as to the law of the case. In view of the plain and unambiguous language of the statute, which leaves it to the sound discretion of the court to advise the jury as to his recollection of the testimony upon any disputed point, we conclude that the court did not commit prejudicial error when leaving it to the jury to determine the issues upon their own recollection of the evidence.

The verdict was well within the limits of the instruction and we conclude that the defendants were not prejudiced by the action of the court at this point in the proceedings. Therefore, assignment of error No. two must be overruled.

The third assignment of error is that the court erred in overruling the motion for a new trial.

The defendants asserted eight grounds of error in their motion. Five of these grounds related to questions of evidence which cannot be considered upon review in the absence of a bill of exceptions showing the evidence. Another ground relates to the proceedings after the jury returned to the court room, which we have fully discussed. The claimed error of the court in the charge to the jury assigned on this appeal was not specified in the motion for new trial. The remaining two assignments are that “the verdict was contrary to law” and for “other errors apparent upon the face of the record.”

In our opinion the court did not err in overruling the motion for new trial. Finally, for the reasons generally set forth herein, we conclude that no prejudicial error having intervened, the judgment must be and is affirmed. Exceptions noted. Order see journal.

SKEEL, PJ, THOMPSON, J, concur.


source: Caselaw Access Project

author: By HUNSICKER, J.

license: Public Domain

text:
    DICE, Appellant, v. THE AKRON, CANTON & YOUNGSTOWN RD. CO., Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4095.
    Decided June 22, 1950.
    Gottwald, Hershey & Hatch, Akron, for appellant.
    Wise, Roetzel, Maxon, Kelly & Andress, Akron, for appellee.
   OPINION

By HUNSICKER, J.

This is an appeal on questions of law.

John F. Dice, appellant, herein called Dice, brought an action against The Akron, Canton & Youngstown Railroad Company, appellee, herein called Railroad, to recover for personal injuries arising out of an accident which occurred when a locomotive upon which Dice was working as a fireman, was derailed.

The parties were engaged in interstate commerce, and the action was brought under the provisions of the Federal Employers’ Liability Act.

The petition of Dice alleged the essential facts necessary to state a cause of action. The Railroad in its answer admitted that it was a common carrier engaged in interstate commerce, and that Dice, an employee, was injured as a result of the derailment, but specifically denied it was guilty of negligence, and denied the claimed extent and nature of the injuries Dice sustained.

As a second defense to the claims of Dice, the Railroad said it had paid Dice the sum of $924.63 as a full and complete settlement of all claims which he might have against the Railroad. The Railroad also alleged that Dice had executed and given to the Railroad a full and complete written release and satisfaction of all claims and rights of action which he, Dice, might have against the Railroad.

A reply, and later an amended reply, was filed by Dice, in which he stated that: there was no full and complete settlement of his claims against the Railroad; $924.63 was paid to him but not as a full settlement; he tendered the amount of $924.63 to the Railroad, which sum they refused to accept; he signed various papers for the Railroad which, he was informed, were necessary to release the Railroad from claims for loss of work time and medical expenses before he, Dice, could return to work. Dice further denied that he knew that, at the time he executed the purported release, it was a complete release of all claims of every kind and character. Dice further said he believed the representations of the agent for the Railroad that such release was only for wages lost to the date of the signing of such release; that such representation was false and was relied upon by him to his damage.

At the beginning of the trial, counsel for the Railroad sought to have the validity of the release determined by the court as a matter of law, separate and apart from and prior to the determination of any issues of fact. The trial court determined to proceed to try all issues to the jury.

A verdict was returned by the jury in favor of Dice, and, upon a motion for judgment notwithstanding the verdict made by the Railroad, a judgment in favor of the Railroad was entered by the court.

It is from such judgment that this appeal is prosecuted by Dice, who says:

“The trial court committed error prejudicial to the rights of the plaintiff-appellant in sustaining the defendant-appellee’s motion for judgment in its favor, notwithstanding the verdict of the jury for the plaintiff-appellant.”

The parties, by their briefs and in oral argument of counsel, confine their discussion to the propriety of the trial court’s finding, as a matter of law, that the several releases given by Dice, especially the release which was executed in September, 1944, were valid and binding upon Dice.

The instant ease was brought pursuant to the provisions of the Federal Employers’ Liability Act of 1908, 45 U. S. Code, Section 51, et seq., as amended in 1939.

We are, therefore, required to determine whether, under the provisions of the Federal Employers’ Liability Act, the submission of the question of the validity of such a release is a matter for the jury or for the court.

“By the Federal Employers’ Liability Act, Congress took possession of the field of employers’ liability to employees in interstate transportation by rail; and all state laws upon that subject were superseded. * * * The rights and obligations of the petitioner depend upon that Act and applicable principles of common law as interpreted by the federal courts.” Chicago, Milwaukee & St. Paul Ry. Co. v. Coogan, 271 U. S., 472, at p. 474; 70 L. Ed., 1041, at p. 1043, 46 S. Ct., 564.

See, also, Chesapeake & Ohio Ry. Co. v. Kuhn, 284 U. S., 44, at p. 46; 76 L. Ed., 157, at p. 160, 52 S. Ct., 45.

“It is contended that this construction of the complaint is binding on us. The argument is that while state courts are without power to detract from ‘substantive rights’ granted by Congress in FELA cases, they are free to follow their own rules of ‘practice’ and ‘procedure.’ To what extent rules of practice and procedure may themselves dig into ‘substantive rights’ is a troublesome question at best as is shown in the very case on which respondent relies. Central Vermont R. Co. v. White, 238 U. S. 507 [59 L. Ed. 1433, 35 S. Ct., 865, Ann. Cas., 1916B, 252, 9 N. C. C. A., 265]. Other cases in this court point up the impossibility of laying down a precise rule to distinguish ‘substance’ from ‘procedure.’ Fortunately, we need not attempt to do so. A long series of cases previously decided, from which we see no reason to depart, makes it our duty to construe the allegations of this complaint ourselves in order to determine whether petitioner has been denied a right of trial granted him by Congress. This federal right cannot be defeated by the forms of local practice. See American Ry. Exp. Co. v. Levee, 263 U. S., 19, 21 [68 L. Ed., 140, 143, 44 S. Ct.,11].” Brown v. Western Ry. of Alabama, 338 U. S., at 294, at p. 296, 94 L. Ed., 100, at p. 102; 70 S. Ct., 105.

Many recent cases concerning the more limited phase of the problem before us have been reported by the federal courts. If it ever was the law, as applied to this question before us, that the validity of a release merely voidable, was a question of law to be determined by the court and not an issue of fact to be submitted to the jury, these late cases effectively state that the issue is one of fact for a jury to determine.

In this connection, the recent case of Garrett v. Moore-McCormack Co., (1942), 317 U. S., 239; 87 L. Ed., 239, 63 S. Ct., 246 (a release case founded under the Federal Merchant Marine Act), made a pronouncement on the subject which the Federal Circuit Courts of Appeals were quick to adopt in their applications to similar situations arising under the Federal Employers’ Liability Act.

The validity of a release which is relied on as a defense to an action under the federal Employers’ Liability Act is a question which is to be determined by federal law. Ricketts v. Pennsylvania Rd. Co., 153 F. (2d), 757, 164 A. L. R., 387 (Second Circuit, 1946); Brown v. Pennsylvania Rd. Co., 158 F. (2d), 795 (Second Circuit, 1947); Thompson v. Camp, 163 F. (2d), 396 (Sixth Circuit, 1947); Irish v. Central Vermont Ry., Inc., 164 F. (2d), 837 (Second Circuit, 1947); Graham v. Atchison, T. & S. F. Ry. Co., 176 F. (2d), 819 (Ninth Circuit, 1949); Chicago & N. W. Ry. Co. v. Curl, 178 F. (2d), 497 (Eighth Circuit, 1950).

The Supreme Court of the United States, so far as we have been able to discover, has not directly passed on the limited question before us in the instant case. That court, however, in the case of Callen v. Pennsylvania Rd. Co., 332 U. S., 625, 92 L. Ed., 242, 68 S. Ct., 296, did say, in a release case, at page 629:

“It is apparent that the jury accepted the instructions of the court on the subject of the release. Returning, they rendered a verdict ‘for the plaintiff, and assess the damages at $25,240.00, of which the railroad is to be reimbursed with $250.00.’ The court, saying he wanted to make the record right, asked the jury if they made a net finding of $24,990, which the foreman said they did. Under the instructions they had received, there was little else that the jury could do, for the court had withdrawn from them the issue as to the validity of the release and consequently had given them no instructions as to the law that should govern the determination of any such question.
“While the trial court assumed a finding of permanency as a basis for his setting aside of the release, after challenge to his assumption as to the nature of the injuries he made every effort to correct the impression, insofar as it affected the issue of damages. But the trial court did not correct or in any way alter his determination that the release was not binding insofar as it rested on the assumption of permanent injury. The Court of Appeals was right in holding that failure to submit this latter question to the jury was reversible error.”

The recent federal cases make no distinction in the requirement that, even though the release is merely voidable and not void, a jury issue is presented. Graham v. Atchison, T. & S. F. Ry. Co., 176 F. (2d), 819; Chicago & N. W. Ry. Co. v. Curl, 178 F. (2d), 497.

And the Per Curiam opinion in Brown v. Pennsylvania Rd. Co., 158 F. (2d), 795, as bearing on this question, is as follows:

“The appellant contends that a verdict should have been directed in its favor because of a general release executed by the plaintiff in consideration of the payment to him of $170.40. This sum was the amount of wages lost during the period of time he was incapacitated for work by reason of his injuries. He testified that he signed the document without reading it in full, believing it to be a receipt for lost wages because of representations made by the defendant’s claim agent. The latter told a different story. Whether the release was procured by misrepresentation presented an issue involving the credibility of contradictory witnesses which was properly submitted to the jury for decision. See Chesapeake & Ohio R. Co. v. Howard, 178 U. S., 153, 167, 20 S. Ct., 880, 44 L. Ed., 1015; Southern Ry. Co. v. Clark, 6 Cir., 233 F., 900; Miles v. Lavender, 9 Cir., 10 F. [2d], 450; Ricketts v. Pennsylvania R. Co., 2 Cir., 153 F. [2d], 757; Farrington v. Harlem Savings Bank, 280 N. Y. 1, 19 N. E. [2d], 657. There was also testimony that the defendant’s doctor had not fully informed the plaintiff of the extent of his injuries. See Banici v. Standard Oil Co., 2 Cir., 103 F. [2d], 437, 439.”

We therefore determine that the trial court committed error prejudicial to the rights of the appellant in entering judgment notwithstanding the verdict. The testimony presented on the issue of validity- of the release was not a matter on which reasonable minds could come to but one conclusion.

The trial court was therefore required to present such question to the jury as an issue of fact, which it properly did, and not resolve such issue as a matter of law. It was error to. overrule his own action in the submission of the question to the jury by determining the issue of the validity of the release as a matter of law, when considering and granting the motion non obstante veredicto.

We order that the cause be remanded to the Common Pleas Court, with instructions to enter judgment upon the verdict for the appellant, Dice.

Judgment accordingly.

STEVENS, PJ, DOYLE, J, concur.


author: By PHILLIPS, J.

text:
    PETERCHAK, Plaintiff-Appellee, v. CARNEGIE-ILLINOIS STEEL CORPORATION, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3481.
    Decided November 16, 1951.

      Traxler & Beil, Youngstown, for plaintiff-appellee.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

By PHILLIPS, J.

Defendant, a steel corporation, amenable to the Workmen’s Compensation Act of Ohio, and a self-insurer thereunder, appeals on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for plaintiff in his action filed therein to review his claim of right to participate in the Workmen’s Compensation Fund of Ohio, which was denied him upon rehearing by such commission.

Plaintiff filed his claim to recover compensation for injuries sustained while in defendant’s employ, and allegedly acting within the course and scope of his employment with it as a millwright, in March 1947.

On March 18, 1947, when plaintiff returned from work at his place of employment with defendant steel corporation his wife advised him that his right eye was red, to which he responded he didn’t remember anything entering it.

About 7:00 P. M. on March 21, 1947, plaintiff applied for first aid to his right eye at defendant’s emergency hospital, complained that it was sore, and related to the nurse in charge, and also to his foreman, the conversation had with his wife.

In response to arrangements made by defendant’s nurse-employee plaintiff consulted an eye specialist, who treated him for five weeks for “purulent conjunctivitis” of the right eye “due to outside infection.” The cornea of plaintiff’s right eye was scarred, and such conjunctivitis subsequently spread to the left eye. Plaintiff gave the specialist no history of the presence of a foreign body in either eye.

Plaintiff’s witnesses, fellow employees, testified:—

“Q. You didn’t see Peterchak get anything in his eye, did you?
“A. The answer is: When?
“Q. When? On March 21st, 1947.
“The Witness: 1947, before, I no see him with bandage.
“Q. With a bandage, did you say?
“A. Before that I didn’t see him have a bandage. After that I see that he had something in his eye, and that’s all.
“The Witness: And before I no see him.
“Q. Did you say that Peterchak told you that he got something in his eye?
“The Witness: Second time I go move guide down in the hole, Peterchak no say nothing to me, just come out.
“Q. He didn’t say anything to you while you were in the hole?
“The Witness: In the hole—
“Q. Now, did he say anything—
“The Witness: Just hide down in the hole.
“Q. Did he say anything to you before he went to the doctor?
“The Witness: Just come up out; then down in the hole, come up out; he swear, ‘S - of - a - b, I got something in the eye’.”
“A. Something fell in his eye. I sent him to the hospital and he came back to work in two days with the bandage on his eye. Then he told me that his wife said there was something wrong with his eye.”

In answer to a hypothetical question propounded by plaintiff’s counsel his physician witness testified:—

“Assuming that the story is correct of Mr. Peterchak having gotten foreign bodies into his right eye on the first occasion, and also assuming that it was necessary for him to continue treatment for as long a period as it was necessary, as he stated, obviously there was more than just a simple foreign body, which usually heals in a short period of time, that is, a superficial corneal body. So assuming then that all the foregoing statements were correct, then I can see where Mr. Peterchak, that the scars on his cornea are secondary to the injury that he received at that time.
“I don’t know if i made myself clear, in my previous statement, but in my experience with corneal foreign body, an uncomplicated foreign body that’s removed from the cornea and an antiseptic instilled, the usual course is uneventful. However, if the corneal foreign body carried germs in with it, then it leads to what is known as corneal ulcer, and corneal ulcer that is protracted and prolonged in its course usually leads to scarring of the — scarring of more or less severity, depending on the size of the ulcer and the virulence of the organism. I don’t know whether that’s clear.”

Subsequent to the treatment given plaintiff by such oculist another oculist of his own choosing, who did not testify for him, treated him for many months.

By brief defendant’s counsel states:—

“It is the contention of the defendant that there is no evidence of an injury to plaintiff’s right eye within the meaning of injury as defined in the Workmen’s Compensation Act, §1465-68 GC, or as that term has been interpreted by the Supreme Court in the Malone case, 140 Oh St 292. It is defendant’s position that the difficulty with plaintiff’s eye was due entirely to outside infection and not to injury.”

Plaintiff’s testimony, offered by himself, of the presence at any time of a foreign body in his right eye was that weeping of that eye was the result of the “dirt that must have gotten into his eye.”

Plaintiff’s medical expert witness Bloomberg testified to a causal connection between the injury to plaintiff’s right eye and his employment, which was based upon a hypothetical question in which it was erroneously stated as a fact that on March 11, 1947, while in the course of his employment a particle, or particles, of dirt entered his right eye. liiat witness testified “so assuming then that all of the foregoing statements were correct, then I can see where Mr. Peterchak, that the scars on his cornea are secondary to the injury that he received at that time.” Further that witness testified that the injury to plaintiff’s eye could have been caused by injury or by infection, and he could not tell whether the condition of plaintiff’s right eye resulted from injury or infection.

Further defendant contends that the evidence submitted in the trial court is not sufficient “to support a claim for injury under the Workmen’s Compensation Act,” and supports that statement by citation of the case of Gerich v. Republic Steel Corporation, 153 Oh St 463, in which this court was reversed.

Next defendant contends that: “A mere possibility that there is causal connection between an incident and a diseased condition of the eye is not sufficient under Ohio law. There must be at least a probability. Drakulich v. Industrial Commission, 137 Oh St 82; Industrial Commission v. Lathrop, 52 Oh Ap 55; and Hof v. Industrial Commission, 62 Oh Ap 241.”

It is observed that neither plaintiff, nor some of his fellow workmen, handle the English language with ease, which makes reading of the record rather difficult at times.

Defendant waived its right to rely on the claimed error that the trial judge erred to its prejudice in overruling its motion for a verdict to be directed in its favor when it accepted the ruling of the trial court and proceeded with its defense and introduced evidence in its own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

Now coming to consider defendant’s assignment of error that “the court erred in overruling defendant’s motion for a directed verdict in its favor, and at the close of all of the evidence submitted in the case.” We can not so conclude, as in our opinion there is evidence warranting submission of the case to the jury. But we conclude that “the verdict of the jury is contrary to law and against the manifest weight of the evidence.”

The judgment of the court of common pleas is reversed and a new trial granted and the cause remanded to the common pleas court for further proceedings according to law.

NICHOLS, PJ, GRIFFITH, J, concur.


author: By REYNOLDS, J.

text:
    BARN CAFE & RESTAURANT, INC., Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL et, Defendant-Appellee.
    Common Pleas Court, Franklin County.
    No. 181167.
    Decided May 21, 1951.
    Isadore Topper, Columbus, Robert N. Gorman, Cincinnati, for appellants.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By REYNOLDS, J.

This case is before the Court on Appeal from a decision of the Board of Liquor Control affirming a ruling of the Director of the Department of Liquor Control suspending appellant’s liquor permit for 25 days.

Following are the charges which had been preferred against appellant:

“That on December 8th, 9th, 10th, and 13th, 1949, you and/or you agents or employees, did have, harbor, keep, possess or employ, or allow to be kept, exhibited or used in, upon or about your permit premises, devices, machines or’ apparatii, to-wit, race horse betting sheets; and that you and/or your agents or employees, did allow gaming and wagering on the outcome of horse races on your permit premises — in violation of the provisions of the Liquor Control Act and the regulations of the Board of Liquor Control.”

The following is the ruling of the Board of Liquor Control from which the appeal was taken:

“This cause came on to be heard after due notice to Barn Cafe & Restaurant, Inc., 616 Lodge Street, Cincinnati 2, Hamilton County, Ohio, as required by law upon the order of the Director of the Department of Liquor Control to show cause why Permit (D-5) 33356 heretofore issued to the said Barn Cafe & Restaurant, Inc., by the Department of Liquor Control should not be revoked for violation by the said permit holder of the provisions of §6064-25 GC and Regulation No. 32-A promulgated by the Ohio Board of Liquor Control.
“The Board finds from the evidence that on December 8th, 9th, 10th and 13th, 1949, the said permit holder and/or its agents or employees had, harbored, kept, possessed or employed, or allowed to be kept, exhibited or used in, upon or about the said permit premises, devices, machines or apparatus, to-wit, race horse betting sheets; and that the said permit holder and/or its agents or employees allowed gaming and wagering on the outcome of horse races, on the said permit premises; in violation of provisions of the General Code of Ohio and regulations of the Ohio Board of Liquor Control.
“It is therefore ordered and adjudged that Permit (D-5) 33356 be, and the same is suspended for a period of twenty-five (25) days, beginning September 25, 1950, and ending at midnight, October 19, 1950.”

The evidence in this case shows that the Hangar Theatre Bar, Inc., is located on the first floor of a four story building at the corner of Walnut and Gano Streets in the City of Cincinnati, Ohio. On the second floor is a room occupied by the “Cincinnati News Club” which has been a tenant in the same room since 1933. On the same floor there is a locker room for the employees of the Hangar Bar and office rooms of The Electron Company. The second floor is reached by a stairway entering from Walnut Street, opening on to a hall on the second floor from which the News Club is reached through a door to the left, the Electron Company through a door on the right and the locker room straight down the hall.

On the first floor between the Bar of appellant and the dining room operated by it is a hall, accessible to both rooms, and from which hall there is a stairway leading to the second floor hall above described. There is a door at the foot of the stairs, marked “employees only,” and is a so-called fire or emergency door, that is always able to be pushed open when coming down the stairs, but is governed by a push button when going up the stairs.

At the next corner of Gano Street, at the corner of Gano and Lodge Alley in the same block as the Hangar, Is the Barn Bar and Dining Room which is operated by a separate corporation but with some of the same stockholders as the Hangar Bar, and there existed a family relationship among the interested parties. A common kitchen is used by both businesses and it is possible to go from the Barn Bar through its dining room and the common kitchen into the rooms of the Hangar Bar. The Barn Bar is located in a four story building but there is no connection between the upper floors of that building and the upper floors of the building in which the Hanger Bar is located so that to get from the Barn Bar to the rooms occupied by the Cincinnati News Club one must either go around the street to the stairway on Walnut Street, or go through the common kitchen and up the stairway marked “For employees only.”

The evidence is that an inspector of the Liquor Department on several occasions placed bets on horse races with a man named Harvey in the aforesaid club rooms and it is on his testimony that the permit holder, to-wit: Barn Cafe & Restaurant, Inc., was found to have “harbored, kept, possessed or employed or allowed to be kept, exhibited or used in, upon or about the said permit premises, devices, machines or apparatus, to-wit, race horse betting sheets and that said permit holder allowed gaming and wagering on the outcome of horse races on the said premises * * *”

Hinde, the inspector, testified that he visited the “Barn” on December 5th, 6th, 7th, 8th, 9th and 10th, also on the 13th, purportedly for the purpose of getting evidence of gambling on the premises.

Apparently he saw or heard nothing on his first two visits which indicated anything illegal, but on the 7th he said he talked to a man named Hall who told him that he worked in the book upstairs. (Emphasis ours.)

Again on the 8th he talked to Hall who informed him that if he wanted to go upstairs the bartender at the Barn would show him the way.

He further testified that on the 8th he asked the bartender to show him the way upstairs and the bartender told the porter to show him up, which he did, taking him through the common kitchen, and up this stairway, marked as before stated for “Employees only” and at the top of the stairs, pointed to the door which opened into the clubrooms where he made a bet.

He returned' on the 9th, 10th and 13th, always first entering the Barn Bar and going alone through the kitchen to the inside stairway according to his testimony.

Considerable doubt is thrown on this part of his testimony as the evidence is that the door is locked from the lower side, and controlled by a buzzer and when he was asked if the door was usually locked, he stated “I wouldn’t know, the porter pulled it open.”

Certainly if he had gone up that way alone on several occasions he would have known if the door was locked so that when he gave this answer and that the porter had opened the door on the only occasion on which he claimed the porter was along, the only conclusion the Court can reach is that he went up this stairway but once.

The bartender at the Barn denied ever having been asked by Hinde how to get upstairs and denied that he had instructed the porter to direct him.

The evidence is that but one porter was employed at the Barn, at all the times in question, and he was called as a witness and denied ever having shown Hinde the way upstairs and Hinde testified that he was not the one who had performed this service for him.

Another significant thing about Hinde’s testimony is the fact that although he had talked with Hall on at least two occasions in the Barn, and had been told that he worked upstairs on the Book, that although Hinde later visited the club rooms where he made bets on at least four different days, there is a total failure of any evidence to indicate that Hall was ever there.

Another matter of significance is the fact that with all the Inspector’s efforts, zeal and opportunity to get evidence, if any, to show some relationship between the two permit holders and the betting in the club rooms, not a single patron or visitor in the club rooms used this stairway connecting between the second and first floors.

There is absolutely no evidence that any of the people interested in either the Hangar or the Barn had any interest or membership in the Cincinnati News Club, and the only thing common is that all three corporations are tenants of The Schavel Realty Company, the owner of all the properties involved, and the News Club was and had been a tenant for several years of the former owner at the time the property was purchased by The Schavel Realty Company.

The Court therefore finds that there is a complete failure of the evidence to show any connection between appellant permit holder and the premises where bets on horse races were accepted, except proximity, and that there is nothing to support the finding that this permit holder, “its agents or employees had, harbored, kept, possessed or employer, or allowed to be kept, exhibited or used in, upon or about the said permit premises, devices, machines or apparatus, to-wit, race horse betting sheets; and that the said permit holder and/or its agents or employees allowed gaming and wagering on the outcome of horse races, on the said permit premises;” It is therefore the ruling of the Court that the finding and ruling of the Board of Liquor Control be reversed and vacated.


author: By MILLER, J.

text:
    BARN CAFE & RESTAURANT, INC., Appellee, v. BOARD OF LIQUOR CONTROL, Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4637.
    Decided January 24, 1952.

      Robert N. Gorman, Cincinnati, Isadore Topper, Columbus, for appellee.
    Hon. C. William O’Neill, Atty. Geni., Thomas R. Lloyd, Brown W. Pettit, Asst. Attys. Geni., Columbus, for appellants.
   OPINION

By MILLER, J.

This is a motion submitted by Barn Cafe & Restaurant, Inc.. Appellee, seeking an order dismissing the appeal for the reason that there is no statute or constitutional provision which authorizes the appellants to appeal to this Court to review the judgment made by the Court of Common Pleas of Franklin County, Ohio, in an appeal pursuant to §154-73 GC. The action is one involving the review of an order made by the Board of Liquor Control suspending the permit of the appellee for the alleged infraction of a rule of the Board of Liquor Control. The sole question raised by the motion is whether or not the Department of Liquor Control has the right to prosecute an appeal to the Court of Appeals from a judgment of the Court of Common Pleas of Franklin County, reversing, vacating or modifying an order of the Board of Liquor Control. All of counsel are in agreement that in order for the appellant, the Board of Liquor Control, to have the right of appeal it must be conferred upon it either by the Constitution or by statute.

It is further agreed that the Constitution is silent upon the proposition; therefore, the right, if it exists, must be found in the statute. The provisions for review of orders of the appellant herein are found in the Administrative Procedure Act, §154-61 et seq, GC. See. 154-73 GC, in so far as pertinent, reads:

“Any party adversely affected by any order of an agency issued pursuant to an adjudication * * * revoking or suspending a license, may appeal to the common pleas court of the county in which the place of business of the licensee is located or the county in which the licensee is a resident from the order of said agency, provided, however, that appeals from decisions of the board of liquor control shall be to the court of common pleas of Franklin County only. * * *”
“The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and such other additional evidence as the court may have admitted, that the order is supported by reliable, probative and substantial evidence and is in accordance with law. In the absence of such a finding by the court, it may reverse, vacate or modify the order or make such other ruling as, in its opinion, is supported by reliable, probative and substantial evidence and is in accordance with law. The decision of the court shall be final and conclusive unless reversed, vacated or modified on appeal.”

It is further conceded by all of counsel that under the foregoing section of the General Code only the party adversely affected by the ruling of the Board would have the right of appeal to the Common Pleas Court, which in the instant case would be the licensee. This section contains no express provision giving the Board the right of appeal from the Common Pleas Court. Neither does it expressly give the licensee the same right of appeal, although it recognizes that an appeal may be had, the statute providing:

“The decision of the court shall be final and conclusive unless reversed, vacated or modified on appeal.”

The same section of the Code defines the procedure and ensuing rights as follows:

“The hearing in the court of common pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the statutes or other law applicable to such action.”

Under the foregoing section it appears to us that the Legislature has declared that the proceedings in the Common Pleas Court shall be governd by the statutes or other laws applicable to civil actions. These laws with reference to appeals are found in §12223-1 et seq, GC, and confer upon the parties to a civil action the right of appeal. Therefore if governed by the same statute the appellant herein would have the right to appeal.

In the case of Albers, Admr., v. Great Central Transport Corporation, 32 O. O. 201, at p. 203, the Court stated:

“* * * that the Legislature did not intend the appeal to be a new action but a continuation of the action which was originally instituted by the issuance and service of summons on the filing of the petition.”

Upon this theory the appellant herein merely continued the action which was instituted by the appellee. That the appellant was a party to the proceedings had in the Common Pleas Court with rights in the controversy is indicated by the afore-quoted portion of §154-73 GC which provides:

* * The court shall determine the rights of the parties in accordance with the statutes or other law applicable to such actions.”

In the case of the City of Middletown, et al. v. City Commission of Middletown, et al., 138 Oh St 597, at pp. 603 and 604, Judge Zimmerman says:

“* * * the apparent legislative intent was to confer the right of appeal on such persons as are parties to an action.”

The appellee cites the recent case of Minnis v. Board of Zoning Appeals, 89 Oh Ap 289, but which is not on all fours with the case at bar, since it involved the interpretation of §3180-14 GC and an interpretation of the Administrative Procedure Act was in no way related to the question there presented.

It is our conclusion that the Department of Liquor Control having been a party to the proceedings in the Court of Common Pleas with rights determinable in accordance with the laws applicable to civil actions, had a statutory right to prosecute this appeal. The motion will be overruled.

HORNBECK, PJ, WISEMAN, J, concur.


author: By THE COURT.

text:
    BARN CAFE & RESTAURANT, INC., etc., Appellee, v. BOARD OF LIQUOR CONTROL et, Appellants. HANGAR THEATER BAR, INC., an Ohio Corporation, Appellee, v. BOARD OF LIQUOR CONTROL et, Appellants.
    Ohio Appeals, Second District, Franklin County.
    Nos. 4637, 4638.
    Decided May 21, 1952.

      Isadore Topper, Columbus, Robert N. Gorman, Cincinnati, for appellees.
    Hon. C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellants.
   By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court of Franklin County, reversing the order of the Department of Liquor Control which revoked permits issued to Barn Cafe and Hangar Theater Bar, Inc., Cincinnati, Ohio. The two cases were consolidated in the hearing below and were presented as one case in this Court.

The permit holders were charged with permitting gambling on the premises.

After a careful examination of the entire record we find no evidence to prove that the permit holders exercised any control over the gambling establishment which operated on the second floor, which was occupied by several tenants. Neither do we find the evidence on this issue to be of such a character that a reasonable inference may be drawn that the permit holders exercised any control over the gambling establishment. A well-considered and comprehensive opinion of Judge Reynolds is found among the papers which we adopt as our own.

Judgment affirmed.

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


author: By HORNBECK, J:

text:
    HURSH, Plaintiff-Appellee, v. PENNSYLVANIA RAILROAD Co., Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 479.
    Decided November 29, 1950.
    Halloran & Rosenthal, Aaron J. Halloran, Springfield, for plaintiff-appellee.
    Matthews & Altick, Hugh H. Altick, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment of the Municipal Court of Springfield, Ohio, in favor of the plaintiff and against the defendant for damages to an automobile.

Plaintiff moves to dismiss the appeal for the reason that the Court is without jurisdiction to entertain it and cites Saslaw v. Weiss, 133 Oh St 496. The cited case is authority upon procedure for an appeal upon questions of law and fact from the Municipal Court to the Court of Common Pleas but has no application to appeals on questions of law. This court had jurisdiction of this appeal under Article IV, Section 8, of the Ohio Constitution. American Casualty Co. v. Howell, 125 Oh St 62.

Plaintiff was riding in her own car driven by Floyd Hursh, her husband, in a northerly direction on a public street in Seymour, Indiana, when her automobile was struck by a locomotive of the defendant company moving in the same direction. The cause was submitted to a judge without a jury.

Three errors are assigned.

1. The judgment is contrary to law because the driver of plaintiff-appellee’s car was the agent of plaintiff-appellee in the operation thereof, and was negligent in a manner contributing directly and proximately to her damages.

2. The trial court erred in refusing defendant-appellants request that the court state in writing • the conclusions of fact found separately from the conclusions of law.

3. The judgment is against the manifest weight of the evidence.

The first and third assignments of error are not established.

The trial judge made no separate findings of fact and conclusions of law and we, therefore, cannot say that he did not apply the principle that the driver of the car was presumptively the agent of the owner, the plaintiff. Nor, can we say as a matter of law either that plaintiff’s driver was negligent or, if negligent, that such negligence was a proximate cause of plaintiff’s injuries. Glasco v. Mendleman, 143 Oh St 649. We concede the principle announced in the cases cited by counsel for appellant, Riley v. Speraw, 42 Oh Ap 207; Dahnke v. Maggitt, 63 Oh Ap 352; Brooks, Admr. v. Sentle, et al, 74 Oh Ap 321. Nor, is the judgment manifestly against the weight of the evidence requiring its reversal. Defendant did not plead the agency of the driver of plaintiff’s car.

After the finding of the trial judge in favor of the plaintiff, but, before the judgment entry thereon, defendant requested the Court to set forth its findings of fact as well as its conclusions of law. This is the second error assigned. The trial judge was of the opinion that the request came too late and also that §11421-2 GC did not apply to the Municipal Court of Springfield.

This Court has held that the request as made here was timely. State ex rel Kerns v. Beightler, Director, 38 Abs 615.

In support of the claim that the trial judge should have acceded to the request for separate findings of law and fact, we are cited to Cleveland Produce Co. v. Dennert, 104 Oh St 149, which held that the Municipal Court was required to observe the provision of §11421-2 GC and Yetter v. Kleinman, 34 Oh Ap 433 and Graver v. Trust Co., 20 Oh Ap 233. The case on review in Cleveland Produce Co. v. Dennert originated in the Municipal Court of the City of Cleveland and it was there that the request for special findings was made. Chief Justice Marshall in writing the opinion made no reference whatever to the applicable statute defining procedure in the Municipal Court of Cleveland. However, in the later case of Levick v. Bonnell, 137 Oh St 453, Judge Turner in writing the opinion makes clear the reason why a judge of the Municipal Court of Cleveland is required, upon request, to state conclusions of fact separately from conclusions of law. He directs attention to §1579-19, paragraph 6, GC of which provides

“Where no special provision is made in this act, or by rule of court, the provisions of title four, part third, of the General Code shall apply to the practice and procedure of the municipal court; but this section shall not be construed to abridge the powers of the judges in respect thereto granted by this act.”

The provisions of the General Code to which reference is specifically made relate to “Procedure in Conduct of the Trial in the Common Pleas Court” which includes §11421-2 GC. The same sections were applicable to the case of Graver v. Trust Co., 20 Oh Ap 233. The case of Yetter v. Kleinman, 34 Oh Ap 433 involved the Municipal Court Act of the City of Cincinnati and particularly §1558-28 GC.

There is no section of the Code in the Municipal Court Act of the City of Springfield like, or analogous to, the section to which we have referred in the Municipal Court Act of Cleveland. The Cincinnati Municipal Court Act, §1558-28 GC, also differs from §1579-22 GC.

The section of the Code applicable here is §1579-22 GC which provides

“In the actions and proceedings of which the Municipal Court has jurisdiction, all laws conferring jurisdiction upon courts of common pleas, * * *, giving such court or officer power, to hear or determine such causes, prescribing the force and effect of their judgments, orders or decrees, and authorizing and directing the execution or enforcement thereof, shall be held to extend to the Municipal Court, unless inconsistent with this act or plainly inapplicable.”

We find nothing in this section which authorizes or requires the Municipal Court of the City of Springfield to follow the procedure set up in §11421-2 GC which section relates strictly to trial procedure and not to “jurisdiction” of the courts nor the “force and effect of their judgments,” orders and decrees, or the execution and enforcement thereof.

There being no provision of law expressly or impliedly relating §11421-2 GC to the Municipal Court of Springfield, we are required to say that the trial judge was correct in refusing to comply with the request for special findings of fact and conclusions of law.

The judgment will be affirmed.

MILLER, PJ, WISEMAN, JJ, concur.


text:
    MEYER, Plaintiff-Appellant, v. RENNER COMPANY, Defendant-Appellee.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3434.
    Decided October 17, 1951.

      Sehermer, Goldstein & Millstone, Clyde W. Osborne, Youngstown, for plaintiff-appellant.
    W. P. Barnum, Youngstown, for defendant-appellee.
   OPINION

By PHILLIPS, J.

In this opinion plaintiff, an individual, will be called plaintiff, and defendant, a corporation, will be designated as defendant.

On November 29, 1946, the parties entered into a written contract of employment by the terms of which plaintiff agreed to become an executive officer of defendant corporation in charge of operation for a term of three years commencing January 1, 1947, and ending December 31, 1949.

Defendant agreed to pay plaintiff a salary of $10,000.00 a year, and an incentive bonus on production by defendant corporation of more than 70,000 barrels of beer in any calendar year during the existence of such contract; and an additional incentive bonus, provision for which was made in such contract as follows:—

“(b) Fifteen percent (15%) of the net earnings derived from the operation of the brewery for the fiscal year in excess of an amount equal to ten cents (10c) per share on the outstanding capital stock at the close of the fiscal year. Provided, however, that in no event shall the payment of the said fifteen percent (15%) bonus reduce the amount available for common dividends to less than ten cents (10c) per share on the said capital stock, and if necessary the said bonus shall be reduced to make available such amount. ‘Net earnings’ as herein used means the earnings of the Company for the fiscal year before Federal Income, surtax and excess profits taxes.
“The maximum compensation to be paid the Executive for salary and bonus shall be Forty Thousand Dollars ($40,000) per year.”

During the year 1947 defendant expended $53,000.00 in constructing a garage for housing vehicles used in the operation of its brewery. Twenty-nine thousand nine hundred thirty-six dollars and forty-six cents of that amount was expended in payment of damages to adjoining property owners resulting therefrom. Six thousand five hundred dollars of that amount was recovered by settlement of defendant’s claim upon a bond purchased by it to protect it in such construction.

During the year 1947 defendant paid plaintiff the yearly contract agreed salary of $10,000.00 and a bonus of $6,098.83 on “earnings derived from operation of the brewery.”

Plaintiff claimed he was entitled to a bonus of 15% of the claimed net earnings from the operation of the brewery amounting to $70,595.31, or $10,589.30 for his services for the year 1947; that being paid $6,098.83 he was entitled to receive an additional amount of $4,490.47, to recover which amount he sued defendant in the court of common pleas.

After both parties moved for directed verdicts in their favors the trial judge charged the jury generally, and then arrested the case from its consideration, discharged it, found for the plaintiff in the sum of $975.00, which was 15% of $6,500.00, the amount of money recovered on the bond to which reference is made supra, and entered judgment upon his finding.

Plaintiff appealed from that judgment to this court on questions of law, and by assignments of error contends that “the court of common pleas erred in refusing to grant plaintiff-appellant’s request for separation of witness; the court of common pleas erred in the admission of incompetent and irrelevant testimony on the part of defendant-appellee over the objection of plaintiff-appellant; the court of common pleas erred in the refusal to admit competent and relevant testimony on the part of the plaintiff-appellant; the decisions, orders and judgment of the court of common pleas are not sustained or supported by sufficient or proper evidence; the decisions, orders and judgment of the court of common pleas are against the greater weight of the evidence; the decisions, orders and judgment of the court of common pleas are contrary to law; the court of common pleas erred in its findings of fact and conclusions of law; the court of common pleas erred in overruling plaintiff-appellant’s motion for judgment in his favor in the amount of $4,490.00 with interest from January 1, 1948, notwithstanding the verdict”; and “the court of common pleas erred in overruling the motion of plaintiff-appellant for a new trial.”

The question presented to us by plaintiff’s appeal is whether the amount of $29,936.42, to which reference has been made, should be deducted from defendant’s agreed net operating income of $121,895.31 as cost of the operation of the brewery for the year 1947 or should be charged to defendant’s plant upkeep account.

Defendant contends that such amount should be so deducted; and plaintiff claims that it should be charged to defendant’s plant upkeep, and arrives at the amount claimed due him by the following computation set forth in his brief:—

Plaintiff contends that the words of the contract “15% of the net earnings derived from the operation of the brewery” mean what they say, “net earnings” of the defendant and not “net profits or losses.”

In a report to the stockholders of defendant corporation, signed by the plaintiff, he stated:—

“The net profit after depreciation and taxes for the year of 1947 is after deducting $29,936.46 to cover the expense incurred in rear of property due to land slide which required the removal of excess earth, the purchase and spreading of slag and the repair to hospital building. This reduced our 1947 federal income taxes by $11,375.85. The net charge off of $18,560.61 for this extraordinary maintenance was the equivalent of 3.61 cents per share.”

We believe the trial judge arrived at a correct conclusion with reference to the deduction of this amount from defendant’s agreed net operating income of $121,895.31.

Plaintiff’s request for a separation of witnesses was granted. However the trial judge permitted defendant’s auditor witness, a certified public accountant, who does not devote his entire time to defendant’s business and is not an executive officer thereof, to remain in the court room, allegedly in violation of the court’s order of separation of witness, which defendant contends constitutes prejudicial and reversible error.

The trial judge did not err to plaintiff’s prejudice in permitting defendant’s auditor to remain in the court room though he testified as a witness, for the reason that his presence was essential to defendant’s counsel to assist him in the defense of such case; and for the further reason that plaintiff’s objection to the witness remaining in the court room was clearly a matter within the sound discretion of the trial judge, which discretion he did not abuse.

The plaintiff contends the trial judge admitted evidence prejudicially erroneously, as shown by the following excerpts from the bill of exceptions:—

“Q. Referring back to Plaintiff’s Exhibit 2 is there any item on that statement showing the net operating — net earnings derived from the operation of the brewery?
“Judge Barnum: I object; now we are coming to the crucial part. The gentleman has testified that his contract provides for a bonus based upon ‘net earnings’ and he is now attempting to compare the meaning of the phrase ‘net earnings’ with the phrase in the audit of ‘net operating income,’ which are not synonymous.
“Court: Objection sustained.
“Mr. Schermer: Well, I beg to differ, if the court please.
“Court: I have ruled on it and I don’t want to argue about it.
“Q. When it came to computing your 15% bonus did you have any conversations with anyone regarding the figure that was going to be used?
“Judge Barnum: I object for this reason, that under the contract identified by the gentleman, a provision is made as to the manner in which that bonus shall be figured, to-wit, upon the company’s annual audit, and that is controlling.
“Court: Objection sustained with an exception to the plaintiff.
“Q. And do you know on what figures he computed the bonus?
“Judge Barnum: I object; that would be hearsay.
“Q. Did Mr. Jones tell you what figures he computed the bonus on?
“A. Yes.
“Judge Barnum: Objection.
“Court: Isn’t Mr. Jones’ own testimony on that what you want?
“Mr. Schermer: Well, I think he has a perfect right to testify as to his conversation with Mr. Jones, especially as the court has permitted Mr. Jones to remain in the court room as an officer.
“Judge Barnum: He is allowed to remain in the court room for my information.
“Mr. Schermer: He certainly has a right to testify to those conversations.
“Court: I can’t tell exactly the import of your question; you may be getting into a field where you are attempting to vary a written contract by some oral conversations.
“Mr. Schermer: No, I merely want to show what we contend it should be computed on and what Mr. Jones told Mr. Meyer what he was computing it on.
“Judge Barnum: I make my objection so that the record may remain clear. I am making my objection principally upon the thought that plaintiff’s petition in this case does not attack the validity or good faith of the audit in question; it would be an entirely different kind of a lawsuit if an attack were made on it and therefore if no attack is made upon that audit then it is immaterial what Jones said it was based on and has no right to be considered.
“Court: I am inclined to agree with you on that; in the state of the pleadings here I can’t see how you can go inte that line of testimony.
“Q. Mr. Meyer—
“Court: Wait a minute, do you want an exception?
“Mr. Schermer: I don’t need an exception, Your Honor.
“Court: It is up to you; I am just trying to be helpful to you.
“Q. That clause, net earnings as herein used, means the earnings of the earnings of the company for the fiscal year before federal income surtax and excess profit taxes; did your previous contracts all read that way?
“Judge Barnum: I object.
“Court: Objection sustained.
“Q. What was the reason, if you know, why that clause was put in the contract?
“Judge Barnum: I object.
“Court: Objection sustained.
“Q. Do you know the purpose for which it was spread?
“A. Yes, the purpose for buying and spreading the slag was to keep the hill from sliding any further.
“Court: He may answer.
“Q. Go ahead.
“A. My understanding is that the biggest portion of this slag is on neighboring property but that the toe of the slag pile or slag heap is on the property of the Renner Company and that toe, as I understand it, is almost up against the garage building.
“Mr. Sehermer: I object and ask to have it stricken out; he is testifying from his understanding, Your Honor.
“Judge Barnum: Testifying from his knowledge of the record.
“Court: I understand that he is testifying from his knowledge; now maybe that had better be made definite; he said he understands: I understood he was testifying from his own knowledge. Will you ask that specifically?
“Q. The facts you have just testified to, were they within your own personal knowledge?
“A. Well, Judge, I am not a civil engineer and the information I have testified to is the information given me by the officers of the company in the course of my audit for the year 1947.
“Court: It may remain; go ahead.
“A. Then in this schedule, Defendant’s Exhibit 2, which totals $29,936.46 there is another item or a series of items classified as repairs to building owned by the Youngstown Hospital Association, $5,653.76, and the total of those three classifications is $29,936.46 and each of the classifications is further detailed as to the different items of expense involved.
“Q. Again as to this sum of 29,000 plus, is that any part of the cost of the construction of the so-called garage?
“A. No, in making our audit we analyzed all the disbursements and expenses pertaining to this particular problem and then used our discretion and our knowledge as to what items should go into the garage; those itemized as capital we didn’t treat as an expense; then all these other items we call maintenance we charged oil as expense.
“Mr. Schermer: I object; all this is hearsay.
“Judge Barnum: Offer it as expert testimony.
“Court: It comes under the heading of expert testimony and expert testimony, some of it is based upon the immediate personal knowledge of the witness and some of it is based on information which he has secured to enable him then in the light of an expert to apply that knowledge and it may be admitted under the second classification, with exceptions, to the plaintiff.”

The plaintiff claims that the latter testimony was based upon hearsay and not admissible as violative of the hearsay evidence rule.

Further plaintiff contends the trial judge erred to his prejudice in the admission of the following testimony elicited by cross-examination of plaintiff relating to earnings under contracts with defendant previous to the one in question:—

“Q. What was your total salary in 1946?
“A. Well, I think I got a bonus of somewhere around $20,000.
“Q. In other words, what you are saying, a total of about $30,000?
“A. Yes.
“Q. And that would be ’46; and in 1945 about the same?
“A. No, I got less in ’45.
“Q. About how much in ’45 total salary?
“A. I don’t remember, I think it was about it seems to me I got about $13,000 bonus.
“Q. How much?
“A. About 13 or 14,000, I don’t remember the figure.
“Q. What would your average bonus be in the last three years before ’47, what would your average bonus or incentive salary be in say the 3 years preceding ’47?
“A. Preceding ’47?
“Q. That is right'.
“A. I would say somewhere around $20,000.
“Q. So that in sum and substance and talking only in approximate figures your total salary from the Renner Company for say ’45, ’6 and ’7 was in the neighborhood of $30,000?
“A. Yes.
“Q. Is that right?
“A. That is correct.”

Further plaintiff contends the trial judge erred to his prejudice in refusing to admit the following testimony offered by plaintiff on re-direct examination:—

“Q. That clause, net earnings as herein used, means the earnings of the company for the fiscal year before federal income surtax and excess profit taxes; did your previous contracts all read that way?
“Judge Barnum: I object.
“Court: Objection sustained.
“Q. What was the reason, if you know, why that clause was put in the contract?
“Judge Barnum: I object.
“Court: Objection sustained.
“Q. In your previous contracts did it provide you were to be paid after the computation of taxes?
“Judge Barnum: I object.
“A. Yes.
“Court: Objection sustained.”

Finally under this assigned ground of error plaintiff contends that the trial judge erred to his prejudice in allowing defendant’s auditor witness to testify as follows:—

“Q. Can you tell us from your record — we have already had some evidence that the years ’44, ’45, ’46 and ’47— what amounts were paid to Mr. Meyer by way of basic and incentive compensation if any, — ’44, how much?
“A. In the year 1944 his basic salary was $10,000 and his bonus or incentive was $12,840 64, making a total of $22,840.64.
“Q. In ’45?
“A. In ’45 his basic salary was $10,000, his bonus and/or incentive was $20,523.94, making a total of $30,523.94.
“Q. 1946?
"A. ’46 his basic salary was $10,000, his bonus or incentive was $33,283.90, making a total of $43,283.90.
“Q. And ’47 you have given us. 10,000 plus $6,098.83.
“A. That is right, a total of $16,098.83.
“Q. Very little change; and the conditions and clauses put in this contract of November 29, 1946 in your recollection are the same as appeared in the previous contracts?
“Judge Barnum: I object, being immaterial.
“Court: Sustained.
“Q. Was there any change in the contract of November 29, 1946 as distinguished from the contract just prior to that?
“Judge Barnum: I object.
“Court: Sustained.
“Q. Isn’t it a fact that in the contract of November 29, 1946 that you changed it, limiting the amount of earnings Mr. Meyer could receive under the contract?
“Judge Barnum: I object, immaterial.
“Court: Sustained.”

A study of these assigned grounds of error forces us to conclude that the trial judge did not err to plaintiff’s prejudice as urged therein.

The bill of exceptions discloses that counsel for the respective parties waived their right to argue to the jury. Thereupon the trial judge proceeded to charge the jury and then the following colloquy between the trial judge and counsel occurred:—

“Now does counsel desire the court to instruct the jury as to the verdict or submit it to the'jury on this one phase? Will you come to the bench just a minute, both of you? (Both sides confer with the court)
“Let the record show counsel for the plaintiff and counsel for the defendant at this time waive the right to the submission of the issues to the jury and consent to the dismissal of the jury and that the issues be determined by the court.”

Thereupon the trial judge excused the jury and took the case under advisement:

Counsel for plaintiff complains of the manner employed by the trial judge in disposing of this phase of the case, and by brief say:—

“Finally we call to the court’s attention the court’s handling of the motions made at the close of this case. Both plaintiff and defendant moved the court for a directed verdict. These motions threw the case into the court’s hands and took it away from the jury. Yet, as the court will note, the court below took that as merely a waiver of argument and proceeded to instruct the jury. It was only after the jury had been instructed that the court realized that the case was left with it.”

Plaintiff has nothing of which to complain. He was not prejudiced by the foregoing action of the trial judge.

Now considering plaintiff’s assignments of error that “the decisions, orders and judgment of the court of common pleas are not sustained or supported by sufficient or proper evidence, are against the greater weight of the evidence and are contrary to law.” We find no merit in these assignments of error because the amount upon which plaintiff claims compensation was a valid current expense for payment of damages and not for capital improvement.

The trial court did not err “in its finding of fact and conclusions of law,” nor in overruling the plaintiff-appellant’s motion for judgment in his favor in the amount of $4490.00 with interest from January 1, 1948, notwithstanding the finding of the court.

Since we have found that the trial judge committed no error prejudicial to plaintiff in any of the respects he urged it is obvious we conclude he did not err in overruling plaintiff’s motion for new trial.

The judgment of the court of common pleas is affirmed.

NICHOLS, PJ, concurs in judgment.

GRIFFITH, J, concurs.