text:
    COYNE v LYMAN
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided June 11, 1930
    ' Ed. Williams and A. L. Kearns for Coyne.
    M. E. Brunswick, Youngstown, John Hooper and Wm. E. Pfau, Youngstown, for Lyman.
   POLLOCK, J.

The first claim that was made in this matter is that the action being appealed from the Court of Common Pleas to this court, the Court of Common Pleas while the appeal was pending in this court could not make any order or judgment in the case, had no jurisdiction to do so. That is correct so far as entering any further judgments on the merits of the case is concerned, but that -is not the issue here. The issue here was a motion under the statute after term asking the court to strike out the judgments that had been entered on July 30th, because the court had no jurisdiction to enter them.

Section 11634 GC provides:

“Proceedings to correct mistakes or omissions of the clerk or irregularity in obtaining a judgment or order shall be by motion upon reasonable notice to the adverse party or his attorney in the action.”

It does not appear by the record that there was any written notice served on the attorneys for the plaintiff. While one of the attorneys testifying said he thought a copy of the journal entry was sent to opposing counsel, there does not appear to be any written application or motion made. We think that there was no legal notice served upon opposing counsel, or counsel for plaintiff, of the oral request or oral motion asking the court to set aside this judgment. The court would have no jurisdiction to set aside judgment after term as this was, unless the opposite party had notice. But aside from the question of notice to opposing party, it does not appear that the facts then before the court were sufficient to authorize a court to set aside judgment of March 19th and re-enter that judgment. If the court had, it must appear that the judgment of March 19th was not regularly entered.

We will just refer to what the court itself said as to a summing up of the facts. The court said, stating the facts as he understood them and as they appeared before him when the entry of July 30th was made.

“Now, when this matter was presented to me here in July, 1929, July 30th, 1929, I just felt that this case had been in this court long enough. It was going around everywhere else and somebody else ought to have it for a while, and I made the entry and upon that let it into the court of appeals as that is where the case should be presented, and for this reason I have always felt that that matter as to the duration of this injunction is a matter that should seriously concern any court. I appreciate the fact that the record is against me in the matter. Judge Thomas decided otherwise and the journal entry approved by Mr. Kearns and Mr. Brunswick decided otherwise. I appreciate that but the fact was in my mind, and Mr. Bye knew that was in my mind and at'the time I suggested to him what was in my mind. Then again, these are advertising dentists and I don’t know how far the court should go in entertaining an action in this court. It is unethical according to their profession in the methods they used or employed in procuring business, and some of these things were inthebackof mv head somewhere when I made this entry ‘for good cause shown’, arid I want the record to clearly show that there was no formal proceeding and that there was no evidence introduced and there was no appearance here upon the part of Mr. Bye or Mr. Kearns. There was nothing of that kind here. Mr. Pfau and I were alone in this room and I reached the conclusion that the motion was well taken and it should be sustained.”

In this there is no statement or evidence indicating irregularity in entering of judgment of March 19th, and if the court had it in his mind that he had made an error about entering judgment, if that is what he means by having somthing in the back Of his head, he immediately made the same entry without correction. All we have is that it was his intention to get it out of the Court of Common Pleas and let the Court of Appeals work with it for a while, and that is no doubt the reason for setting aside the judgment.

There is considerable discussion here about judgment entered July 30th containing the words “for good cause shown”. That has no virtue in attempting to set aside judgment without facts showing there was good- cause for setting aside a judgment. So that the judgment of the Court of Common Pleas overruling the motion to strike out both judgments entered on July 30th is reversed with direction to sustain the motion and strike out those two judgments. Exception.

Roberts and Farr, JJ, concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    CLEVELAND RAILWAY CO v FEATHERSTONE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10711.
    Decided June 23, 1930
    Squire, Sanders & Dempsey, Cleveland, for Ry Co.
    J. P. Mooney, Cleveland, for Featherstone.
   LEVINE, J.

Various assignments of error are set forth but we shall confine our attention to those assignments directed at the charge of the court.

We are of the opinion that the assignment of error as to the exclusion of testimony showing plaintiff’s good health, and the assignment of -error in the charge with respect to future damages are not material in this case, for the reason that the verdiet was very moderate and if error was committed by the court in respect to the extent of injury and amount of damages, that the same could not have influenced the jury, in view of the amount of the verdict.

Our attention is directed to a portion of the court’s charge which is as follows:

“The court has already charged you in effect that it was the duty of the Street Railway Company through its driver of this bus, to have its bus under such control and driven at such a rate of speed that the bus, when faced with an emergency which could or should have been reasonably anticipated, could be stopped without violating the obligation it owed to its passengers, that is, the duty of extending to the passenger the high degree of care required by law, as outlined before. In other words, he must drive his car in such a manner that he can anticipate and look out and protect its passengers if some emergency should arise or something appear in front of his bus and have it stopped without causing serious damage or any damage to its passengers.”

It is pointed out that in view of the circumstances disclosed by the evidence, that this statement of the court imposed upon defendant absolute liability for plaintiff’s injury.

The plaintiff undoubtedly was a passenger in the bus and was in a standing position for want of a seat. After the bus passed E. 2nd St., and was between E. 2nd St. and the Williamson Bldg., and ,as it was proceeding at a disputed speed, it suddenly came to a stop. Plaintiff claims that the bus stopped with such a jolt that she was thrown to the floor. She was helped to her feet but refused the offer of a seat, saying, “No, I am not hurt.” She continued to stand there until she got over the High Level Bridge at West 25th Street where she got a seat.

At the time of the stopping of the bus it had been going at a speed plaintiff described as not less than 25 miles an hour. The driver of the bus testified that on that date he was driving a motor coach which made a sudden stop just as it was entering the safety zone at the Williamson Building, to avoid hitting a man; that he was going at a slow rate of speed at the time when the man ran out in front of the bus so close that he had to put on the brakes to keep from hitting the man.

In view of this evidence the statement of the court “that the driver of the bus must drive his car in such ,a manner that he can anticipate and look out and protect its passengers if some emergency arises, or something appears in front of his bus, and have it stopped without causing serious damage or any damage to its passengers,” imposes a f,ar greater duty than that required by law.

In the case of Mintz vs International Railway Co. 227 N. Y. 197, 124 N. E. 893 (1919) the court said:

“At the instant the boy first came into the sight of the motorman the danger of killing him was imminent. The defendant was bound to use every available agency or means which did not within reasonable probability subject the passengers upon the car to serious bodily injury, to avoid killing or mangling him. As between the act of stopping the car suddenly before it ran upon him and thereby shaking, displacing or jerking the passengers and the act of stopping gradually ,and carefully and therein permitting it to run upon him, the defendant was bound by the commands of ordinary and reasonable prudence and care, as well as by the dictates of the right regard for human life, to adopt the former.”

While it is true that the railway company owes a duty of the highest degree of care to its passengers, it cannot be regarded as an insurer of the saftey of passengers. In judging whether or not the railway company exercised the highest degree of care toward this plaintiff, reference must be had to the surrounding circumstances.

The court ommitted in its charge the essential element of “surrounding circumstances” when it fixed the degree of care required of the railway company. We believe that the statement as it stands imposes too great a burden on the railway company and is, for that reason, erroneous.

Our attention is directed to a portion of the charge wherein the court injected into the case the doctrine of res ipsa loquitor. It is quite clear that the cause of the sudden stop on the part of the driver of the motor bus was an .agency beyond the control of the railway company. The bus came to a sudden stop by the sudden application of brakes in order to avoid hitting a man who ran into the path of the bus.

“Where all the facts attending the injury are disclosed by the evidence and nothing is left to inference, no presumption can be indulged, — the doctrine of res ipsa loquitor has no application.” 20 R. C. L. Sec. 157.

Since all the facts and circumstances in this case appear in evidence, the doctrine, in our opinion, has no application.

We hold that the court committed error in injecting the doctrine of res ipsa loquitor into the present case.

The railway company requested the court to give the following charge:

“The bus driver had a right to assume that no person would negligently run out across the street in front of the bus.”

which charge the court refused. The ruling of the court was excepted to.

We hold that the request stated the law applicable to this case. The driver of the' bus had the right to presume that no pedestrian would suddenly dart out across the street at the place in question, and thus create an emergency endangering the safety of the pedestrian and those upon the bus, and the court clearly committed error in refusing to give the charge as requested.

For the reasons above stated, the judgment of the municipal court will be reversed and the case remanded for a new trial.

Vickery, PJ, and Sullivan, J, concur.


author: LLOYD, J.

text:
    BRISENO v STATE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2395.
    Decided June 23, 1930
    Marion W. Bacome, Toledo, and C. E. Fackler, for Briseno.
    Leroy W. Hunt, Prosecuting Attorney, and Cecil Stickney, Assistant Prosecuting Attorney, both of Toledo, for State.
   LLOYD, J.

At the conclusion of all of the evidence, counsel for Briseno presented to the court 16 written instructions as to the law, requesting that they be given to the jury in advance of argument. This request as to eleven of them was refused, to which ruling of the court exceptions were taken. After argument of counsel for the respective parties to the jury, the court .charged the jury generally as to the law applicable to the issues involved and included therein such of the principles of law contained in the requested instructions as were proper to be given. In a criminal case it is not mandatory upon the trial judge to give to the jury requested written instructions in advance of argument nor to incorporate them literally in his general charge to the jury. All that is required in any event is that he shall give to the jury, in such language as he chooses, the principles of law correctly stated in the requested instructions.

Prior to ten o’clock of the morning of February 6th, during the trial, a subpoena was issued by Briseno for Juan Figueroa. Pursuant to this subpoena, search was made by a deputy sheriff during that day and night for this desired witness, but he could not be found. Another witness, not connected with the sheriff’s office and who knew Figueroa, also searched for him but “did not find him anywhere”. An official court reporter, who had transcribed the testimony of Figueroa taken at the first trial, testified without contradiction as to the correctness of the transcript from which it was proposed to read to the jury the testimony of the absent witness, and no exceptions were taken to the reading thereof on the ground that it was in any respect incomplete or incorrect. The court refused to permit this testimony to be read to the jury and exceptions were taken by Briseno to this ruling. From a reading of this transcript, which is attached to the bill of exceptions, we find Figueroa to have been an eye-witness of the alleged crime and a material witness to the defense of self-defense which Briseno was seeking to prove. On December 21st, 1929, Figueroa was arrested at the instance of the State and was detained at the County Jail until January 11th, 1930, when he was released on his own recognizance, to appear as a witness for the State at the trial of the instant case. One of the attorneys for plaintiff in error represented him in procuring his release, as well as in proceedings for a writ of habeas corpus theretofore brought and denied, but the evidence does not disclose any collusion or attempt on the part of Briseno, or any one in his behalf, to prevent or persuade him from being present at the trial, and in our judgment it was prejudicial error to exclude his testimony.

Section 13444-10 GC., effective July 21, 1929, provides that:

“Testimony taken at an examination or a preliminary hearing, at which the defendant is present, or at a former trial of the cause, or taken by deposition at the instance of the defendant, or the state, may be used whenever the witness giving such testimony shall have died, or could not for any reason be produced at the trial; or whenever the witness has, since giving such testimony, became incapacitated to testify. If such former testimony is contained within a bill of exceptions, or authenticated transcript of such testimony, it shall be proven by the bill of exceptions, or transcript, otherwise by other testimony.”

For the error committed in excluding the testimony of the absent witness Figueroa, the judgment is l'eversed and the cause remanded for a new trial.

Williams and Richards., JJ, concur.


author: VICKERY, PJ.

text:
    STATE ex MORGAN v RUSK, etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10819.
    Decided June 23, 1930
    A. H. Martin, Cleveland, for State ex.
    Walter Booth, Cleveland, for Rusk.,
   VICKERY, PJ.

We have gone over this record and heard the arguments of counsel and we wonder where the basis for this objection is. If we understand the nature of the charter of the City of Cleveland, within its proper domains it has the same power'that the Ohio legislature would have, to pass private bills or to do anything that the legislature might do. Now the thing that we wish to accentuate in this case is that Morgan was not a volunteer; that he performed these services upon the request of the authorities and that seems to have been a point which the learned judge in the court below seems to have lost sight of. Of course, if a man does a heroic act and is a mere volunteer, he cannot recover, nor can a subsequent promise to pay him be the basis of a recovery. There must have been not only a promise, but it must have beén based upon a prior request or legal liability; but where there is a prior request and then after the services are .rendered there follows the subsequent promise, under all the laws of contracts of which we have knowledge, there is laid a perfect basis for a right to recover.

Now we want to cite in this connection a case that arose in this County, Spitzig vs. The State, ex rel Hile, et al, 119 OS. 117. The County Commissioners are liable only when made so by statute. An accident happened in the Court House by the falling of an elevator and Spitzig was very seriously injured in that accident. The County was not liable because there was no statutory liability. Under such circumstances the claimant went to the legislature and had a private bill passed which authorized the County Commissioners of Cuyahoga County to settle that claim for a sum not to exceed $15,000 and to pay the injured party the amount upon which they had agreed in settlement. A settlement was made for $12,500, and the County Commissioners authorized the Auditor to draw a warrant out of the general fund to pay this sum of money. Whereupon an injunction suit was brought to prevent the auditor from issuing such a warrant because there was no legal basis for the payment of this sum of money. That was he,ard by the courts and the Supreme Court found — and we think properly found, that the auditor must issue the warrant, although that was a more far-fetched case than the instant one, because there was no legal liability on the County Commissioners at all, and, of course,' there was no request in the first instance, in favor of the injured man. It is claimed by the City in the instant case that the County Commissioners were negligent in that case and it is argued that the right to pay was based upon negligence.- There is no negligence unless it be actionable negligence. Negligence is a term that is used upon which, if it exists, an action can be predicated to recover. Now there was no negligence upon the part of the County Commissioners in the Spitzig case, because- there ;was no actionable negligence, or no negligence which gave rise to a cause of action, therefore it was not a basis for a lawsuit and could not be. But the legislature of Ohio, the supreme law making body of the State could, by private bill, authorize the County Commissioners of Cuyahoga County to pay a claim which there was a moral obligation on their part to pay. If this injured party was guilty of no negligence himself and was injured while riding in one of the public elevators in the Court House, there is no reason why he should bear the - brunt of it rather than the entire community, and so the legislature having plenary power, having power to legislate upon any subject which is not prohibited by the constitution of the United States or of the State of Ohio, might readily authorize the County Commissioners to pay such a bill, and that theory was sustained by the Supreme Court and Spitzig got his money.

Now adverting again to the instant case, the difference between it and the case of which I have just spoken is that in the instant case a man at the request of the authorities performed services which were not only laudable, but heroic, and subsequently the legislative body of the City, having the same plenary powers that the legislature of the State has, within its province passed an ordinance authorizing the payment of Two Thousand Dollars to this man, and we think that they had the power to pass such legislation and we think the record in this case shows that the council was not only authorized to pass the bill but that the city auditor ought to have paid it; and we think that the court below, in refusing to issue the writ of mandamus had misunderstood the facts and the law, and that his finding was both contrary to the facts and to the greater weight of evidence and to the law, and for that reason the judgment of the Common Pleas Court will be reversed. Having all the facts before us, and the relator being entitled to the writ of mandamus, and we, having original jurisdiction in mandamus, order the writ issued that the Court of Common Pleas should have ordered issued, and the judgment of the court will be: - the cause reversed and the writ of mandamus ordering the City Auditor to draw the voucher' to pay this Two Thousand Dollars be issued. Judgment accordingly.

Sullivan and Levine, JJ, concur.


author: SULLIVAN, J.

text:
    UNION SAVINGS & LOAN CO v KUPETZ, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10735.
    Decided June 16, 1929
    Suggs Garber, Cleveland, for Savings & Lo,an Co.
    Wm. J. Corrigan, Cleveland, for Kupetz, et.
   SULLIVAN, J.

It is argued that' the memoranda in pen and ink upon the envelope of the escrow order, executed by Keller and the Kupetz’ in addition to the agreement above quoted, made Dec. 3, 1925, constitutes an assumption of the indebtedness which would include the amount due on the deficiency judgment, but an examination of the memoranda referred to fails to disclose any obligation assumed by the defendants to pay the mortgage indebtedness. It is indefinite, uncertain, ambiguous and vague and an obligation of assumption does not arise from this memoranda.

When we come to examine the other document of Dec. 3, 1925 as above quoted, we must consider it in connection with the fact that in the foreclosure proceedings the Kupetz’ were not made parties defendant and while it may not be mandatory under the statute that in the foreclosure proceedings the Kupetz’ be made parties defendant, yet it clearly appears that as parties in interest they were entitled to service of process because of their right as purchasers to_, subrogation and that this was a substantial right there can be no question because had they been made parties defendant it may be that there would not have been a deficiency judgment because of possible and probable action on their part so to control the foreclosure proceedings and sale that there would be no deficiency judgment against them or at least that it would not be in the amount sued for in the instant case.

Again, we do not see .any consideration passing from the Kupetz’ to the plaintiff in error by reason of the writing of Dec. 3, 1925. It seems to be more in the nature of an advice that the Kupetz’ had purchased the property and considered it advisable to notify plaintiff in error of the transaction and that seems to be the extent to which they obligated themselves in this particular document. At that time they were under no obligation to the plaintiff in error and plaintiff in error was under no obligation to them and we think that under the circumstances appearing in the record, and especially because the Kupetz’ were not made defendants in the foreclosure suit that a reasonable construction of the writing does not go to the extent which, under all the evidence in the record, and the peculiar circumstances surrounding the transaction, makes the Kupetz’ liable for the deficiency judgment which arose from the foreclosure proceedings to which they were not a party.

As to the right of defendants to process in the foreclosure suit, we cite Pomeroy’s Code Remedies, 1929, Paragraph 231, page 369. ■

Wé think that this doctrine laid down by Pomeroy is distinctly applicable and controlling in the case at bar and our holding is that the judgment of the Municipal Court be and the same is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: BLOSSER, J.

text:
    DOZER, Admr v DOZER, et, etc
    Ohio- Appeals, 4th Dist, Gallia Co
    Decided June 26, 1930
    Hollis C. Johnston, Gallipolis, for Dozer, Admr.
    Henry W. Cherrington, Gallipolis, for Dozer, et.
   BLOSSER, J.

It is urged on behalf of the plaintiff that the contract of marriage entered into between the parties is void. The evidence shows that the parties were married in the city of Columbus on October 4, 1926; that within a few days thereafter there was an application made by interested parties to have a gaurdian appointed for Jesse L. Dozer and that on October 11 the Probate Court of Hancock County made a finding that he was “an incompetent” and that a guardian was necessary. A guardian, however, was not appointed until February 10, 1927. So that ,at the time of the marriage ceremony no guardianship existed.

It is urged hy the plaintiff that this case comes within the principle announced in Waymire, guardian v. Jetmore, et al, 22 OS. 271, the syllabus of which is:

“The marriage contract of one affected with congenital imbecility of mind to a degree rendering him incapable of consent is void ab initio.”

We can not agree that the case cited controls because the facts in that case are entirely different from'those in the instant case. In the case at bar there is no evidence supporting the contention that Jesse L. Dozer was affected with congenital imbecility of mind to a degree rendering him incapable of entering into the marriage relation. It is true that the Probate Court of Hancock County found that he was an incompetent but there is nothing in the record to show what that incompetency consisted of. As he was a man of eighty two years of age it is probable that on account of physical weakness and old age he may have been incapable of looking after his business affairs .and for that reason vjas incompetent. There is no presumption that he was an imbecile. In the Waymire case the suit was brought by the guardian of the incompetent person to annul the marriage while in the present case neither Electa King Dozer nor her guardian is complaining. A guardian not having been appointed for Jesse L. Dozer until after the marriage was entered into the action of the Probate Court alone was no legal bar to his entering into that relation.

There was considerable oral testimony offered tending to reflect on the physcial and mental condition of Jesse L. Dozer. From a review of that evidence we are unable to say that he had not sufficient mental capacity to either enter into the marriage relation or to make a disposition of his property. After the marriage ceremony was performed the parties lived together as husband and wife for several months.

While it is true that Electa King Dozer was at the time of the marriage under a guardianship yet from the testimony and from the evidence she gave it is evident that she fully understood what she was doing and had sufficient mental capacity to enter into the marriage relation. The mere fact that she was under a guardianship would not render the marriage contract void. The degree of mental capacity required to enter into a valid marriage is laid down in 18 R. C. L. as follows:

“Therefore, it is not every unsoundness of mind that will make void a marriage contract, and if a person entering into the marriage relation has sufficient capacity to understand the nature of the contract and the duties and responsibilities which it creates the marriage will be valid.”

In the case at bar Electa King Dozer fully comprehended the nature of her act in getting married and the consequences of the same. It is shown by a consideration of her evidence that she had sufficient business judgment to realize that it was profitable she temporarily gave up a pension of thirty dollars per month to enhance her income by receiving the benefits of a pension amounting to seventy two dollars per month.

Jesse L. Dozer, while advanced in years, was undoubtedly of stronger mentality than his wife. The evidence shows that the gifts which he made to his wife were fully considered by him both before and after his marriage, and that he stated on several occasions that he was going to present these bonds to his wife in consideration of her having given up the pension which she received by reason of the military services of her former husband. He fulfilled his promise and fully completed the gifts by delivery in his lifetime.

The case of McCleary v. Barcelow, et al, 16 O. C. C. 481, states the law applicable to this case as follows:

“1. A marriage freely and voluntarily entered into by a person of full age and of sufficient mental capacity to understand and carry out the same, but which marriage took place after a guardian had been appointed for him by the probate court *** which guardianship continued to his death, and where the parties to such marriage lived together as husband and wife for sixteen months, and until his death, without any objection on the part of the guardian but with his tacit consent, and where no proceeding was ever taken before the death of the husband to annul such marriage, held to be valid and binding.
2. The adjudication of a probate court in such a proceeding *** appointing a guardian of his person and property, is in a case of this kind but prima facie, and not conclusive evidence of his want of capacity to contract a marriage.”

The parties in this case having lived together as man and wife for some months and until the marriage contract was dissolved by the death of Jesse L. Dozer it would require .an unusual state of circumstances to justify a court of equity in annulling the marriage contract. We do not think that those circumstances have been shown in this case and that the marriage entered into by the parties was valid and binding.

It is contended by the plaintiff that the gift of the bonds .and household goods was caused to be made by undue influence exercised upon Jesse L. Dozer. The evidence does not support this contention. The rule is universal that it does not require as high a degree of judgment and sense in transactions between members of a family as if the transaction was with a'stranger or a person of ,an adversary, character. Pepple v. Pepple, 13, O. C. C. 43. There is no evidence to establish undue influence in this case and no undue influence will be presumed.

“Where a gift is made by a husband to a wife no presumption of undue influence arises from the mere marital relation.”

30 Corpus Juris, 703.

The degree of mental capacity necessary to make a valid gift is laid down in 28 Corpus Juris 626.

A decree may be entered dismissing the petition and a finding and judgment for defendants.

Middleton, PJ, and Mauck, J, concur.


author: ROSS, J.

text:
    MINETTI v EINHORN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3537.
    Decided Jan 13, 1930
    Lester B. Butterworth, Cincinnati, for Minetti.
    Charles H. Elston, Cincinnati, for Einhorn.
   ROSS, J.

The controlling question presented by this proceeding is: Was there a ground for vacation of the original judgment alleged and proved? Such ground must be found in 11631 GC, this not being a proceeding in equity to set aside a void judgment.

The petition filed in the case, purporting to set forth ground for vacation, alleges no ground under the statute. An amended petition was filed after the entry of the of the court suspending the original judgment, which alleged, in addition to the statements of the petition, that the original judgment was obtained through the fraud of Minetti, plaintiff in the original proceeding, in that the plaintiff failed to disclose at the time of taking.the so-called “default” judgment that the sale price of the premises involved in the original action was $12,250.00 instead of $10,500, and that if such fact had been testified to, the judgment rendered in the original case could not have been rendered against Einhorn.

It is further alleged that the plaintiff Minetti in the original proceeding offered in evidence a contract which indicated that the sale price of the premises traded was $10,500.00, when in truth and fact said amount was not the correct sale price.

It is further alleged that Einhorn has a valid defense, in that the plaintiff Minetti, in the original proceeding, actually sufferered no loss when he traded the property covered by the original contract. .The amended petition, giving it full force and effect, as if filed previous to the judgment of the court suspending the original judgment, attempts to bring the grounds for vacation within clause 4 of section 11631 GC; to-wit: “For fraud practiced by the successful party in obtaining a judgment or order.”

The evidence showed that Einhorn, defendant in the original case, failed to carry out his contract with Minetti, to purchose a certain piece of real estate; that, thereafter Minetti traded the property, and it is in evidence that he placed a valuation upon this property greater than that mentioned in the contract of sale with Einhorn. Minetti, however, testifies that the property which he took in trade was of less value than the property which he had contracted to sell to Einhorn, and that he lost the amount he claims, to-wit: $1539.50 in the transaction.

Even granting that the evidence does show that Minetti placed a larger valuation upon the property in making the trade with his vendee than that mentioned in the contract with Einhorn, such evidence is not conclusive of fraud or perjury, in that such valuation may have been the ordinary course followed by a vendor of property in inflating the value of his property to as large an extent ,as possible. However, giving this testimony the most favorable aspect to the defendant in error, under the decision in the case of Michael v. American National Bank, 84 Ohio St., 370, the plaintiff in this instant proceeding, seeking vacation, cannot prevail. The syllabi in that case are:

(Here follows quotation of paragraph 1 and 2 of syllabus.)

While the Michael case was a proceeding in equity to set aside a judgment on the ground of fraud, the case is unquestionably an authority for a proceeding under 11631 GC. The ground for vacation in the instant proceeding is related to the matter concerning which the judgment in the original proceeding was rendered. As it has been repeatedly said before by courts of this state, if judgments were vacated upon an allegation of perjured testimony, there would be no stability to any judgment, and no end to litigation. While, as has also been said in such cases, an injustice may be suffered by the party seeking vacation, it is more important that the litigation be ended and stability given to judgment than that the grievance of an individual should be redressed. Further, a remedy under paragraph 10 section 11631 GC, is indicated in Mason v. Tremayne, 115 Ohio St., 398.

Counsel for plaintiff in error urges that the court should have submitted the question of the validity of the defense to a jury. It is for the court to determine the existence of the _ground and the validity of the defense, and only a prima facie showing of a defense is required. A jury is not de~ mandable on either of these issues after the court has concluded that there is a ground for vacation and a prima facie defense. The effect of the original judgment may be suspended pending the final adjudication of the case, and if the basic case is of such character as to require the intervention of a jury, then the trial upon the merits should be to a jury, unless waived. Bulkley v. Greene, 98 Ohio St., 55, 58, 59.

Thus viewing the case, the judgment of the court of common pleas will be reversed, and as no ground has been alleged in either the petition or the amended petition, bringing the case within the relief provided for in section 11631 GC, judgment may be entered for plaintiff in error.

Cushing, PJ, and Hamilton, J, concur.


text:
    SEILER v CINO THEATRE CO et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3557.
    Decided Jan 13, 1930
    Pott, Stockmeier, Kruse, Baker & Kops, Cincinnati, for Seiler.
    Dolle, O’Donnell & Cash, Cincinnati, for Theatre Co.
    James R. Clark, Cincinnati, for Defendant in error Robert Fuerst.
   ROSS, J.

Upon this state of the record, the trial court instructed a verdict for both defendants. There being no answer filed to the amended petition by the Cino Theater Com-, pany, the only duty incumbent upon the trial court was to submit the amount of damage to the jury as far as that defendant was concerned.

“An answer to a petition filed before the filing of an amendment to such petition is not an answer to such amendment to the petition, and only becomes so when adopted as such.” Elec. Ry. v. Express Co., 105 Ohio St., at page 345.

There is ample evidence to show an obligation of care to the plaintiff upon the part of both the defendants, and there was evidence to go to the jury that this duty had been neglected, and that such neglect proximately caused the injuries complained of.

The trial court found as a matter of law that the plaintiff was guilty of contributory negligence, in that he proceeded along a dark passage-way and stumbled into the hole in the floor of said passage, which the plaintiff testified he had never before seen open or uncovered.

The plaintiff was asked:

“Q. You don’t know, and you didn’t know at the time, as I understand you, whether or not that hole was opened and left open the day before you had your accident or not?”

To which he answered:

“A. No, I didn’t; if I had known I would have been careful; I just figured it was like it always was.”

It is without the province of any court, in the face of such evidence, to constitute itself a trier of facts, and, thereupon, determine what was the proximate cause of the injury. In order to reach the same conclusion as the trial court, it would be necessary for this court to determine from the evidence that the plaintiff failed to use the care that a prudent and careful person would have exercised under circumstances similar to those in the instant case, and that failure was the natural and proximate cause of the consequential injuries.

We are cited to a number of decisions of the Supreme Court of this state which it is claimed fix the law in what is commonly called “Step in the Darkness Cases”. In none of these do we find any rule of law stated which would be applicable to the facts in the instant case, and until we are cited to a binding authority, fixing, as a matter of law, a standard of care in cases involving circumstances similar to those involved in the case at b,ar, and finding that the failure to exercise that care is the proximate cause of the injuries involved, we must continue to hold the jury the proper arbiter of such facts.

For the reasons given, the judgment of the court of common pleas must be, and is reversed, and the cause is remanded for a new trial.

Cushing, PJ, and Hamilton, J, concur.


author: ROBERTS, J.

text:
    SUPERIOR WHOLESALE GROCERY CO v YOUNGSTOWN (city)
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided July 11, 1930
    Morris Mendelssohn for Grocery Co.
    Carl Armstrong, Youngstown, for City.
   ROBERTS, J.

It is claimed the verdict was against the decided or manifest weight of the evidence. There is perhaps no material dispute concerning the facts in this case. The plaintiff was engaged in the Wholesale Grocery business and in the operation of its business used several trucks, one of which was being used in the business of the company on the 31st day of August, 1927, and was proceding southerly on Glennwood Avenue, a paved street with a single street car track in the center thereof. Hutch, the driver of the truck, perceiving that a street car was following him, pulled out to the curb on his right and as lie passed under this tree the truck, which was nine and one-half or ten feet high, came into contact with a limb of considerable size, with the result that the truck was damaged to the extent of several hundred dollars, and for which damages recovery was sought in this action.

Two ordinances of the city were introduced in evidence as being claimed to be indicative to some extent of the duty of the city. Chapter 35, Section 532, is offered, reading as follows:

“Trees obstructing travel. A tree growing within the limits of a public street, sidewalk or other public place in the city which obstructs or impedes , travel, or which stops, restricts or retards the flow of sewage and water, or which heaves up and destroys sidewalks, curbing or pavement in a public thoroughfare, is hereby declared a nuisance, and whenever in the opinion, discretion and judgment of the deputy director of public works any tree should for any reasons hereinbefore stated be removed, it shall be the duty of the deputy director of public works to forthwith cut down and remove said tree.”

Section 511 was also offered, which refers to the trimming and removing of shade trees where they interfere with the light from street lamps and where they need trimming for any reason, but not directly applying to the present situation.

The verdict in this case was ndt tested by interrogatories or otherwise, so that this court has no means of knowing whether the jury in finding for the defendant determined as a matter of fact that the city was not guilty of negligence, and that was the claim of the city in this action, or whether the plaintiff could not recover because of contributory negligence on its part.

Hutch, the driver of the car, was interrogated in cross examination and gave answers as follows, commencing on page 36 of the record:

“Q Do you remember testifying in the previous case that you could see the limb when you were about eight or ten feet from it, but you thought the top of the truck could clear the limb, do you remember that?
A I think I do.
Q You do remember that?
A Yes, sir.
Q If I get it clear, you are telling me about what you told me then, when you were about eight or ten feet from that limb you saw it and you were going about ten or twelve miles . per hour, maybe fifteen, that you could have stopped your truck in one ' or two feet, but you thought the top of the truck would go under the limb?
A Yes, sir.
Q You didn’t stop it?
A I didn’t stop.
Q Before you came to the limb?
A No.
Q Although you could have stopped your truck before you hit the limb?
A I could have; yes, sir.”

Judge Moore of the Municipal Court was called and testified concerning the testimony given by this witness in the trial in the Municipal Court:

“Q Do you remember him saying substantially this, that he could have stopped his truck and he did stop it in one or two feet?
A The witness was asked the question how far away he was when he first saw the limb and then was asked in what distance he could stop his truck. He answered he could have stopped it in less distance than he was away from the tree when he first saw it.
Q Do you remember what his answer was why you didn’t stop your car?
A I remember in substance he said he thought he could get under it.”

Probably there is no doubt but that the limb of this tree projected out over the paved street at a distance of less than twelve feet above the pavement. Here we have the testimony of the municipal judge concerning the testimony of the driver, and the driver testifies to the same effect, that he saw the limb as he approached it. He was wholly cognizant of its existence. He could have stopped if he had so desired,, but in mistake in judgment as to the height* of it, or the height of his truck perhaps, he decided he could pass under it in safety and attempted to do so.

This clearly indicates contributory negligence on the part of the agent and servant of the plaintiff.

As was suggested before, whether this was determinative of the issues in the opinion of the jury, or whether the jury thought there was no negligence on the part of the city, we do not know, but under the circumstances such as exist in this case,'even if it be determined that there was error upon one proposition, either upon contributory negligence or upon the proposition of there being no negligence of the defendant, this court is not authorized to reverse a case without knowledge as to whether the jury decided and was influenced by the. proposition which appears to be erroneous, if such was the fact, under this situation the court has no alternative but to affirm the judgment, which is accordingly ordered.

Pollock, and F,arr, JJ, concur.


text:
    WILLS, Admr v KONVISSER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10565.
    Decided June 9, 1930

      Alexander H. Martin, Cleveland, for Wills.
    Ben P. Rabb, Cleveland, for Konvisser.
   VICKERY, PJ.

Now an examination of this record will show, I think, that there was no evidence to prove that this building was being used at that time for the storage of any combustible material, nor is there any proof to indicate how the fire originated. It is true there is some evidence by a .patrolman that some time before, a complaint had been made, two or three years perhaps; that rubbish had been allowed to collect; but whether the fire originated from an accumulation of rubbish or whether it was of an incendiary origin, the record does not show.

It is claimed that, because there was a wanton and willful violation of the ordinance and law in respect to such buildings, the case is upon a different basis than a pure negligence case. After one analyses the whole question so far as the liability of the defendant to the plaintiff in error is concerned, it could only be on the ground of negligence. If the owner wantonly and willfully disobeyed the law and violated the criminal statute, he might be liable criminally; but if he were liable civilly, it would be only on the ground of negligence.

Now this record does not show that there was any gasoline or any other combustible material used at that time or had been used for a long time prior thereto and the so-called wanton and willful violation had nothing whatever to do with the fire. The record shows that there was just one automobile in the garage and that was there while its owner, a preacher, I believe, was overhauling it. He had taken out the motor and had taken it apart, and whether it had gasoline or not does not appear; and even if the building had not been constructed in such a manner that it might be used by tenants over a place that contained combustible material, but if it had ceased to be used for that purpose and there was no combustible material there, that violation in the beginning could not be the basis for the lawsuit.

Now other than those allegations in the petition, there is nothing in this record to show that there w,as any negligence whatever upon the part of the owner of these premises. There is nothing in the record to show but what the floors were concrete; that the ceiling was of the proper thickness because allegations in the petition do not take the place of evidence. It was the duty of the plaintiff below to have proved these allegations and then to show that there was the combustible or explosive materials stored or used underneath the dwelling part of the property. That a lamentable accident took place, that these two persons lost their lives is horror enough, no doubt, but in the best of constructed buildings fires do occur either of incendiary origin or otherwise, and persons lose their lives in fires. That has been so ever since man inhabited dwelling houses or buildings and probably will be, so long as man continues to occupy dwelling houses or buildings.

Before the plaintiff would be entitled to recover in this .action there must be some connection proven between the so-called violation of the law and the accident which caused the death of the parties., The mere allegations in the petition will not suffice. Now an examination of this record, as already stated, will show, if it shows anything, that there was no combustible material; that there was no accumulation of rubbish from which a fire might have originated, for the evidence upon that question related to over three years before, and it is a pretty farfetched argument to say that the same condition continued for long years thereafter. There is nothing in this record to show how this fire originated. That the parties died from the fire is of course admitted, or is proven, and the Coroner’s report of this fire was only admitted for the purpose of showing the death of these parties, and it was properly admitted for that purpose and properly excluded for any other purpose, because one cannot prove the fact which is essential to be proven by the report of a coroner. The Coroner could have been the witness and the parties who testified before him could have been called as witnesses, but what the Coroner might have put in a report would not be admissable to prove any affirmative fact; and so far as the death is concerned it was not necessary to admit it fQr that purpose, because it was conceded that these two persons lost their lives by fire in that building.

So after analyzing the whole record and giving careful consideration to the argument of learned counsel, we can come to no other conclusion but that there is not anything in this record to show that the plaintiffs were guilty of such negligence, or any negligence that proximately caused the death of these two persons. There is nothing in this record to show but what it was of incendiary origin, and arose from such accidental means over which the defendant below had no control, and so we cannot say that the court was wrong in directing a verdict at the close of the plaintiffs testimony. We do not think that there is a scintilla of evidence bearing upon the negligence of the defendant which would give the plaintiff below a right to recover. That being so, the court, below committed no error and the judgment will be affirmed.

Sullive/a and Levine, JJ, concur.


author: BLOSSER, J. MIDDLETON, PJ.

text:
    PORTSMOUTH GAS CO v MADDOX
    Ohio Appeals, 4th Dist, Scioto Co
    Decided May 26,1930
    Henry Bannon and S. Anslem Skelton, both of Portsmouth, for Gas Co.
    William J. Meyer, Portsmouth, for Maddox.
   BLOSSER, J.

The defendant alleges several errors occurring in the trial in the Court of Common Pleas which he claims are prejudicial and sufficient to justify a reversal. It is first claimed that the petition is defective ,and insufficient in that it does not allege that the gas company had notice of the defective pipes or the escape of gas therefrom; that these allegations are essential and necessary to state a cause of action, and that the demurrer to the petition should have been sustained. We can not agree with this contention. The petition alleges that the defendant had insufficient and defective pipes, as it well knew, and negligently and knowingly permitted its pipe lines to become and remain in bad repair, rotten, rusted and incapable of retaining gas, and that the gas escaped thru the pipes and was cleárly noticeable for a long period of time prior to the accident. According to the allegations of the petition the conditions therein alleged were knowingly permitted to exist and had existed for a long time prior to the accident and were clearly noticeable. So that the defendant not only had actual knowledge but also constructive notice of the conditions that existed at the time of the explosion. We think the petition was sufficient to state a cause of action, and the demurrer was properly overruled by the trial court.

The law as to the liability of a gas company which supplies its patrons thru mains and service pipes seems to be well settled. Where g,as escapes from the company’s mains notice of a defective condition is not necessary for the company is held to the degree of ordinary care in maintaining its pipes in a reasonably safe condtion.' Another rule, however, applies where • gas escapes from a defective service line on the property of a consumer. In such case the service line is the property of the consumer and is not of the g,as company. The gas company in case of a defective service line is only held responsible when it has had notice of the defect and has had an opportunity to shut off the gas or remedy the defect. In the trial below an issue was made on this point and a number of witnesses testified both for the plaintiff and defendant with reference to the matt.er of notice and knowledge on the part of the gas company. The trial court in its general charge to the jury clearly and properly defined the law with reference to the company’s mains and its service pipes and the matter of notice. We think there was no prejudicial error committed by the trial court either in the overruling of the demurrer to the petition or in .any of its rulings with reference to the question of notice. Insurance Co. v. Cookey and Moore, 33 OS. 555, Yocum, Admr. v. Allen, 58 OS. 280.

The defendant assigns as another ground of error that the verdict is not supported by the evidence. The cistern in question had not been used for a long time prior to the accident. Immediately before the accident it had been cleaned and the water removed therefrom, preparatory to placing ,a partition wall in the same for the purpose of storing oils. One theory of the defense was that waste oils, gasoline, benzoil and other explosives may have been thrown into the cistern and that these substances exploded and caused the injury. However, this is not supported by the evidence. No one at the trial testified that these substances were in the cistern. In fact, the contrary appears when we consider the evidence that water was pumped from the cistern and it was cleaned immediately before the explosion. There is an abundance of testimony showing that gas was escaping from the pipes of the defendant company at various places near the cistern in question. While the evidence as to the cause of the explosion was not as clear and satisfactory as might be desired, yet it shows that it was more probable that the gas escaping from defendant’s pipes found its way thru the soil and into the cistern, and there exploded and was the cause of plaintiff’s injuries, than any theory advanced by the defendant. No theory of the defense was supported by the evidence. For these reasons we can not say that the verdict is not supported by the .evidence.

The third assignment of error is that the verdict of the jury is excessive and beyond the damages actually sustained by the plaintiff. The plaintiff’s injuries were third degree burns and were severe and painful. It is probable no other injuries cause more excruciating pain than burns. The attending physician stated that the plaintiff’s flesh and skin hung in strings from his body. The evidence shows that the plaintiff is marked for life, having not only injuries to his face, ears and eyes, but also to his hands which are permanently disabled. His hands were so severely burned that the free movement of them will never be restored. This accident occurred nearly four years prior to the trial in the Common Pleas Court. The plaintiff appeared before the .trial judge and the jury and they had an opprotunity to observe his condition and appearance and all the incidents of the trial. The question of damages was one primarily for the jury. The pain and suffering caused by the burns was so excruciating and severe that different minds and different persons equally honest and competent might arrive at different conclusions as to the amount of money that should be allowed as compensation. All twelve of the jurors sitting in the case signed the verdict. It should not be disturbed unless manifestly wrong. A reviewing court is more reluctant to disturb the verdict of a jury as being excessive than a trial court. A mere difference of opinion between the court and jury as to the amount of damages is not sufficient to warrant an interference with the verdict. The verdict must be so excessive as to plainly show that it is wrong and that it was produced by improper motives to justify such action. French v. Millard, 2 OS. 45, Railroad Co. v. Miller, 108 OS. 388, Railway Co. v. O’Reilly, 16 OA. 132, 20 R. C. L. 281. While the verdict might seem large yet we are unable to unanimously say that it is so disproportionate to the injuries sustained that it would be our duty to interfere with the same.

Finding no prejudicial error in the record the judgment is affirmed.

Mauck, J., concurs.

MIDDLETON, PJ.

I concur in the affirmance of this judgment except in respect to the amount of damages allowed by' the jury. I am persuaded by the evidence that this amount is excessive, being substantially more than any judgment I have ever known to be rendered where the injury did not materially affect the earning capacity of the plaintiff and in which recovery was had within so short a time.


author: HAMILTON, J.

text:
    HENRY, Admrx v PECK, HANNAFORD & PECK CO
    No 3524.
    Decided Jan. 13, 1930
    LeBlond, Morrissey, Terry & Gilday, Cincinnati, for Henry.
    Pogue, Hoffheimer & Pogue, J. C. Culbertson and Jackson W. Sparrow, all of Cincinnati, for Company.
   HAMILTON, J.

The claim of the plaintiff is that the facts adduced were sufficient to justify the case going to the jury under the res ipsa loquitur doctrine; that there was sufficient evidence from which the jury might infer negligence on the part of the defendant.

The trial court in ^granting the motion stated that there was' no evidence to show that the pipe which caused the death of the decedent was owned and controlled by the defendant, or that its falling was due to any act of the defendant.

Under the doctrine of res ipsa loquitur, if there is any evidence from which the jury might infer negligence on the part of the defendant, then the ease should have gone to the jury.

The rue of res ipsa loquitur is stated in Shearman and Redfield on Negligence, Vol. 1, 6th Ed., section 59, as follows:

“When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.”

See also: 20 R. C. L., 191, par. 158.

It is in the record, and it is argued, that there were many other sub-contractors at work in the building, such as plumbers, carpenters, etc. It is claimed that in so far as the evidence is concerned, the pipe might have been dropped by agents of other of the contractors, or that it might have been dislodged by employes of other contractors; that there is no evidence to show that the defendant company had anything to do with, or control over the pipe at the time.

The record tends to show the defendant company, through its employes, was engaged in the installation of the heating system in the building; that in the prosecution of this work they used iron pipe of the kind which caused the death of the deceased; that on the day preceding the accident they were engaged in this work on the sixth floor of the building; that on the day of the .accident, they moved their equipment to the seventh floor and placed their work bench on the seventh floor within six feet of the elevator shaft.

There is evi4ence tending to show that none of the other contractors used pipe of the character of that which caused the death of the deceased.

The evidence disclosed that on the work bench, and attached thereto, was a vise for use in cutting, pipe and threads thereon for connections; that the employes of the defendant were working there on the day of the accident; that on the end of the pipe was fresh red lead, which was applied to the sections for making connections; that the cap on' the head of the deceased, picked up immediately after the accident, had fresh red lead thereon; that the section of the pipe which fell and struck the deceased was of the kind used in steam heating; and that there were pipes laying around the bench.

We are of opinion that these facts would justify an inference that the employes of the defendant company were responsible for the falling of the pipe which caused the decedent’s death, and would call for some explanation on the part of the defendant company.

It is suggested in the brief of the defendant in error that it was entitled to an instructed verdict on the ground that a suit growing out of the same accident was prosecuted in the court of common pleas of Hamilton County by the- plaintiff against Robert Fuerst, and that a settlement was made in that case for the tortious act and that this settlement barred her from further prosecution of her claim in this case. It is stated in the brief that this bar was pleaded in the second defense of the answer, and, therefore, the plaintiff would be required to show that a settlement made in the suit against Fuerst was not a settlement in full, ,and was not so considered, and not so received or made as such.

It is the law that settlement with one joint tort feasor in full compensation releases all other joint tort feasors. In such a situation, the plaintiff may show that such settlement was not intended and received as a full settlement, and might proceed to judgment, and any judgment recovered would be reduced by the amount of the settlement in the case.

We have examined the record, and, as stated in the outset of this opinion, the answer was but a general denial. A settlement was not pleaded, and the only place it appears in the record is where counsel for the defendant interrogated the plaintiff, while she was on the witness stand, regarding a suit filed against Robert Fuerst and settlement therefor. This interrogation can have no binding effect, since it was not made an issue in the case. We fail to find in the record any amendment or pleading to conform to the proof, or any stipulation regarding such an issue. There being no such issue in the case, the judgment cannot be sustained on account of a bar by virtue of another settlement.

The judgment will be reversed, and the cause remanded for a new trial, and further proceedings according to law.

Cushing, PJ, and Ross, J, concur.


text:
    DELMUL v NOEDA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10486.
    Decided June 2, 1930
    Anderson & Lamb and Lefton & Snyder, all of Cleveland for Delmul.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland for Noeda.
   VICKERY, PJ.

The question was raised as to whether the owner of the ear was liable, inasmuch as he was not driving it. It does not seem to be seriously contended here but that he was liable, for he was really driving the car through a deputy in his presence, and he sat close to the driver in the front seat, so we can dismiss that question. If there is any liability at all, it is the liability of the owner of the car.

As already stated at the conclusion of the testimony, a special verdict was asked for by the plaintiff ,and the principal error urged in this court is that the findings of the jury and the special verdict did not conform to the law and that it was not a special verdict.

There is some criticism as to the facts that the jury found in that special verdict, it being urged that they are conclusions of law. Whether they were or not becomes rather immaterial in this case. We doubt whether they were not proper findings of fact. They seem to be findings of fact all right and not conclusions; but we think this cause must be reversed and remanded, because the special verdict is not in proper form, nor did it pass upon all the issues that were involved.

If we understand the purpose of a special verdict, it is that the jury are to find all the facts and then they are to find, if the plaintiff is entitled to recover, the amount of damages which they are to fix. They have no right to find generally for the plaintiff or for the defendant. Their finding is the facts upon which the court is to determine the conclusions of law to be derived from, or to be used in accordance with, the facts found by the jury and so the finding for the plaintiff or the defendant is the province of the court; and whenever the jury invades that province and finds for either party, it ceases to be a special verdict; and so in the instant case the verdict, instead of being a special verdict, is a general verdict for the defendant, the jury setting forth in the paper writing which they signed their reasons for the general verdict; and finding for the defendant was not their province; that was the duty of the court.

The form of the verdict seems to be all right until one gets down to where the amount is to be found in case the court should find that the plaintiff was entitled to recover and the jury in this special verdict, instead of finding said amount, inserted the phrase: “Plaintiff is entitled to no compensation,” which means a verdict for the defendant, and so whatever they said prior to that was mere surplusage, and the whole does not amount to a special verdict as is provided for under the statutes of Ohio. The jury was to find the facts and then find the amount which the plaintiff would be entitled to recover if he was entitled to recover at all.

Now in this case the plaintiff w,as hurt and quite severely hurt and if there had been negligence upon which to base a right to recover, the plaintiff was entitled to recover at least some amount and from the nature of the accident and the injuries it would seem that he would be entitled to recover a substantial amount. So, now, the jury’s finding that plaintiff is entitled to “no compensation” was equivalent to finding generally for the defendant and, therefore, no special verdict was found, as the plaintiff and defendant too, for that matter, was entitled to under the rules of practice in Ohio where a special verdict is demanded by either side.

This court has lately given its views on this question of special, verdicts in the case of Wills vs. The Anchor Cartage and Storage Company, decided by this Court on February 3rd, 1930, in which case the Supreme Court refused to order the Court of Appeals to certify its record. We feel from the shape that this record is in and the form of this verdict, that we have no option but to reverse the judgment for the reason that all the issues were not passed upon by the jury, and for the fact that the verdict rendered was in form and in effect a general verdict for the defendant, and the court in rendering judgment upon this verdict for the defendant, committed error, and for that reason the judgment will be reversed and the cause remanded to the Common Pleas Court.

Sullivan and. Levine, JJ, concur.


text:
    VILAS v CHRISTOPHER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10684.
    Decided June 2, 1930
    Simmons, DeWitt & Vilas, Cleveland, for Vilas.
    Caldwell, Suhr & Prasse, Cleveland, for Christopher, et.
   VICKERY, PJ.

We do not w.ant to be understood nor are we saying that a man who enters into a 99 year lease cannot legitimately sell his other property, for he can, and the person who buys it and pays value for it, has a clear and good title to it; but we do me,an to say that a man cannot, when he owes money or money is coming due, in anticipation of defeating a just claim that one had or was about to have against him,— we do mean to s,ay that he cannot transfer all of his property to his wife and thus put it beyond the reach of his past creditors or his creditors to come. If such could be done a man could create obligations and then avoid responsibility by transferring to and keeping in the name of his wife the property upon which he had obtained the credit.

When this 99 year lease was made between Vilas and Christopher, Vilas made some investigations and found that Christopher was financially responsible and upon the strength of that he made this deal.

■ Now it seems that the learned judge below was of the opinion, — and the argument was made there and here — that inasmuch ,as security had been taken that it was the duty of Vilas to pursue the surety rather than the principal. This is a proposition of law so naive and novel that it excites one’s curiosity. Remember this is a 99 year lease and I do not remember now how long this security was to be good for, but at the time this obligation accrued, the note and mortgage were not due, but whether they were or not, if Vilas w.as relegated to his security and not to the principal, he could use up that security and then, the principal having transferred his property, it would have been so long transferred that if he undertook to set It aside afterwards the equitable doctrine of estoppel might apply. But even if he had secured a judgment and collected his judgment out of the surety, the surety would be subrogated to the rights of the creditor and he could have procured the setting aside of this transfer, but it is the first time that I think I have ever known that one must pursue a surety and let the principal go. The principal is primarily liable and always liable and he can be pursued without reference to the surety. The surety is only added security, and if Christopher had lost his property or had transferred it to a bona fide holder for value and it could not have been reached, Vilas could go after this surety undoubtedly and recover and he might have done so had he so chosen in the first instance for the default in the payment of rent: but to say that he must do so, that he cannot at first bring an action .against the principal is not the law.

When these debts became due ' and the man who owed them transferred all his property, saving nothing to pay his debts, a cause of action .arose'by any creditor to set aside that transfer, and that is especially true when he transfers it to his wife without any consideration or nothing more than a nominal consideration. If that were not the law, no business man would be safe. Nor do we think it is necessary to have an execution returned nulla bona.

There is no evidence in this record that this man Christopher owned any other property. There is no evidence that an execution could have been satisfied. The record on that question is that he had no other property. The last piece of property he had which he transferred was his automobile.

We think the plaintiff is entitled to the relief he seeks and there may be a decree in favor of the plaintiff.

Sullivan and Levine, JJ, concur.


text:
    DARE, Etc v I O O F No 108, et
    Ohio Appeals, 1st Dist, Butler Co
    No 431.
    Decided Jan 23, 1930
    Shively & Holmes and C. W. Elliott, Middletown, for Dare, etc.
    P. P. Boli, Hamilton, for Odd Fellows.
   ROSS, J.

The evidence presented to us shows that Little lived by himself, was eccentric, and was unable to take care of himself. There is evidence that the Probate Judge had stated that he was going to appoint someone to take care of Little. Little’s father had been an Odd Fellow, and had told him to go to the Odd Fellows if in need. The evidence further shows that Little consulted a Mrs. Elwell, a cousin, asking her if she knew of some organization which would provide for him, and that she suggested the Odd Fellows, and that he asked her to send them to him.

The evidence discloses that they entered into a contract, by which it was provided that Little should be taken care of for the rest of his life; that he would receive medical attention in case of sickness, and a nurse if the same was found necessary; that Little was to receive twenty-five dollars each month, and that if said sum was found insufficient, the amount should be increased to whatever sum was found necessary for the proper keeping of Little. He was insured permanent residence in the premises conveyed to the Lodge as long as he should live, and assured all rights therein as if the same were his except that he should not convey, incumber, or damage the same. The Lodge was to make all necessary repairs on the property, which were found necessary for the. comfortable enjoyment of said property by Little. It was further provided that a person suitable and agreeable to Little should be appointed, who would daily inquire, or as often as conditions demanded as to his need and comfort. It was further provided upon his death, the Lodge would pay his funeral expenses and erect a suitable headstone upon his grave. In consideration of these promises on the part of the Lodge, Little did convey the title to the property described in the amended petition to the Lodge.

The evidence shows that the Lodge performed its agreement to the letter, to the entire satisfaction of Little, and that it furnished him a proper funeral as agreed.

It is true that Little was eccentric, but not more so than many men of similar circumstances and age. His possessions were not large or valuable. He sought a bargain with the Lodge, which required more than simply an, annuity. It included care and attention. The contract is an executed contract. It was carried out to the entire satisfaction of both parties. The lodge did even more than it was required. This executed contract is now sought to be rescinded and cancelled, by persons whose only interest in the matter is that of more or less remote heirs at law.

The evidence in our opinion shows that John Little knew exactly what he was doing. "We quote from the evidence as follows:

“(Mrs. Mary Elwell, page 103, record.)
“A. Well, after Mr. Little’s cousin’s dea,th her nieces asked me to dispose of her things and I was down to the house several times in regard to that, and one day when I was there Mr. Little said to me, “Mrs. Elwell, there are several people want to buy my place, but he said, “I don’t want to sell it to them; they will get tired of me and they will send me away”. And there was one man especially who did insist on him letting him have • the place. He said, “No, he will get tired of me and send me away and I want to stay here as long as I live.” And he walked the floor, and he said, “I onlyvhave nine dollars and a few cents in the bank and I am not able to work, and what will I do? What will I do? and he repeated. Then the next day I went down he repeated the same thing to me. So I began to think and think how I could help the man, and I said, “Mr. Little was your father a Mason? He said no. He said he was an Odd Fellow, and “Father said the Odd Fellows would do whatever they promise to do.” And I said, “I wonder if they would take charge of you.” And he studied and studied the matter over, and he said, “Well now, I wish you would send some of the men down to talk to me.” I said, “Mr. Little, who would you like me to send?” He said, “You name some of the men over.” I did, and among the names was a Mr. Nagle, and he said, “Yes, I would like to have Fred Nagle, I have known him from a boy; he was always a good boy, and I knowed his father.” Then I mentioned Mr. McShera’s name, and he said, “Yes, I would like to have him because I know him pretty well and he comes down here to look after the telephone.” So I spoke to the men and they went down.”
(Mrs. Mary Elwell, record, page, 102)
“A. I did, and I went to him after he took the pen in his hand and said, “If fhis is not your wish, don’t sign it; it’s not too late yét.” and he said, “It is just what I want to do.’”

Much has been said about the failure of consideration, upon the theory that the Lodge was not bound. We think this plea rather strained in its effect, and wholly beside the issue, in that John Little received what he contracted to receive in full measure.

This is not a case of an executory contract and ,a lodge member seeking to enjoin a contemplated action upon the part of the Lodge which would be detrimental to its interests. The contract was mutually beneficial and peculiarly effective in easing the mind of this aged man from apprehension of neglect and suffering.

Judgment will be entered for the defendants.

Cushing, PJ, and Hamilton, J, concur.


text:
    HENDERSON v CLEVELAND RAILWAY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10672.
    Decided June 23, 1930
    J. DeKaiser and M. C. Harrington, both of Cleveland, for Henderson.
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
   SULLIVAN, J.

From an examination of the record it appears that neither plaintiff nor her husband made any observation as to the condition of north or south bound traffic and especially was there no attention paid to the on-coming street car of defendant, proceeding to the north immediately in front of the automobile wherein plaintiff was riding.

The evidence appears to be clear and conclusive that the observation of plaintiff and her husband was confined solely and exclusively to the change from the red to the green light and ignored the peril that was impending by the northward passage of the street car.

When the plaintiff rested her case it is important to note ,as bearing upon the question as to whether the street car crashed the signal so to speak, that the record is silent as to any negligence on the part of the defendant in entering the intersection with the red light of danger against its passage. As to this vital and material point the record makes no disclosure, but inasmuch as the automobile was struck by the street car before it reached the track, an irresistible deduction which is not tinctured with two viewpoints i's that the street car was not only in sight but so close to plaintiff’s automobile that before starting from a standing position it could negotiate no more than about eight feet before it was struck by the street car which, before its approaching the intersection, was sounding a warning by beating a gong, and it is well to note that the driver of the automobile in the rear of the car in which plaintiff was riding, was standing immediately behind plaintiff’s car waiting for the green light ,and saw the street car and heard the warning of the gong.

Thus from a reading of all the evidence, the manner and circumstances of the collision appear to us as conclusive evidence about which there can reasonably be but one view, that had plaintiff looked and not confined her observation to the signal light alone, the order which she gave to go ahead would not have been made and the accident would have been averted.

The collision itself speaks more convincingly as to the proximate cause of the accident than ,any language in the record.

It is the duty of one driving an automobile or controlling it, by suggestions and orders, not only to observe the significance of the signal lights, but to make observation as to the situation of traffic proceeding at right angles and the necessity for this wider range of observation is found in the fact that when the lights change from danger to free passage that vehicles and travelers may not only be enmeshed within the intersection itself but be so close to the danger zone at the intersection that it might be impossible to stop before entering the intersection at the moment of the change in the signals.

The situation is obviously perilous' when one depends upon the signal light alone, because the sudden disarrangement of traffic by the change in signal lights produces an emergency and a hazard which cannot with safety be overlooked or ignored.

The observations herein made are based upon the testimony of three witnesses in the two cars that were waiting at the intersection for the safety signal, but more especially was the testimony of plaintiff herself the pivotal point in determining the absence of two viewpoints and the existence of but one and that flowing largely from the collision itself, being the want of the exercise of ordinary care on the part of plaintiff, who, from the record, while she was riding with her husband, who was taking her to her place of employment, w,as from her own testimony and that of her husband, controlling and guiding the car at the period of peril and emergency.

From an examination of the record as to any charge of negligence against the defendant, we have come' to the conclusion that there is no substantive evidence of any character upon this point and consequently we are compelled to come to the conclusion that there is a failure of proof” in the record as to any negligence whatsoever, but as to the negligence on the part of plaintiff, it appears clear from the record that there w,as such negligence by way of the want of exercise of ordinary care as would preclude recovery and in a sentence that act was the order to go forward by limiting observation to the signal light alone and not taking in the range of that territory which constitutes the danger zone ,and especially the on-coming street car clearing the intersection under what is presumed to be, from the absence of anything in the record to the contrary, compliance with its legal duty.

Our line of reasoning we think finds endorsement in D. T. & I. Railroad Co. vs. Rohrs, 114 OS. 493; Cleveland Railway Co. vs Goldman, 132 OS. 73.

. Holding these views the judgment of the lower court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: MIDDLETON, PJ.

text:
    WARD v BOARD OF EDUCATION (Harrison Twp, Gallia Co)
    Ohio Appeals, 4th Dist, Gallia Co.
    Decided June 26, 1930
    ■ R. M. Switzer, Gallipolis, for Ward.
    Henry W. Cherrington, Gallipolis, for Board.
   MIDDLETON, PJ.

There are several defenses made to the claim of the plaintiff but it becomes unnecessary to refer to them until the record establishes that the trial court under the evidence must have found that the plaintiff had a valid, subsisting, enforcible contract of employment with the defendant We are persuaded from the undisputed facts in this case that she never had an enforcible contract against the board and that the trial court, acting as a jury, might well have so found in arriving at its judgment in the case.

As before observed, the record of the board shows that the employment of teachers made by it on June 4 had a condition that the teachers then so employed, including the plaintiff, should sign a contract of employment on or before one o’clock P. M. of the first Monday in July following, which was on the second day of said month, and upon their failure so to do the board should consider them “not hired”. The contract of the plaintiff was received by her on June 18 and was not returned by her until July 5. This, of course, on her part was not a compliance with the terms under which the contract was to be accepted as understood by the board. It is contended, however, that she had no notice of the condition which required her to sign the contract on or before July 2. That contention may be conceded, but so long as the contract remained in her hands or under her control there was no acceptance on her part ,and no compliance by her with the terms of her employment, and the most that she may claim under such facts is that the time within which and during which she held the contract was a reasonable time arid that she acted with due diligence in signing and returning it to the board. It is a primary rule that a party contracting by mail as she did, when no time limit is made for the acceptance of the contract, shall have a reasonable time, acting therein with due diligence, within which to accept. In New v. Insurance Co., 131 Am. St. 245, 250, this rule is well stated as follows:

“It is true that where an offer is made by mail to employ, in the absence of notice of revocation *** that the writer continues •filling to contract down to the time the other party may with due diligence accept the proposition.”
See cases cited in Am. Dig., Cent. Ed., Vol. 11, page 89.

This rule does not permit the accepting party to sign a contract at his pleasure. It does not give him the'unqualified right to hold the contract, as the plaintiff did in this case, for seventeen days, nor does it .allow undue delay to determine whether another contract in contemplation might be more advantageous to him if it could be obtained. The evidence in this case may have moved the trial court to find that the delay of the plaintiff was due to her pending application before another board for another school.. The evidence at least tends strongly to show that she did not return her contract until the other outstanding application was denied.

In a note to McClay v. Harvey, 32 Am. Rep. 51, the rule is thus stated:

“If any undue delay or failure of delivery of the letter of acceptance is caused by the fault of the accepting party there is no contract.”

Manifestly the question of whether or not the plaintiff had acted with due diligence was a question for the jury, and also whether the board meeting again on July 2 and then having no return from the contract offered to the plaintiff was justified in revoking its offer and employing another in her place was ,a question for the jury. If, as we have observed, the trial court reached the conclusion that the plaintiff did not act with due diligence and that under the admitted circumstances of the case the board was not. at fault in revoking its offer to employ her, we regard the evidence as sufficient to support such a finding and determination of the rights of the parties. This conclusion on the part of this court makes it unnecessary to consider any of the remaining claims of the parties to this action.

The judgment is affirmed.

Mauck and Blosser; JJ, concur.


author: MAUCK, J.

text:
    WESTERN & SOUTHERN LIFE INS CO v. SMITH
    Ohio Appeals, 4th Dist, Pickaway Co
    Decided July 6, 1930
    Vorys, Sater, Seymour & Pease, Columbus and Chas. H. May, Circleville, for Insurance Co.
    Abernathy & Simpkins, Circleville, for Smith.
   MAUCK, J.

The controversy between the parties arises over a supplementary contract attached to the original policy which provided among other things for a waiver of further premiums if the insured was shown to have become wholly disabled. If we take the facts as set up in the answer to be true, as we are bound to do upon a motion for judgment upon the pleadings, the petition would seem to have omitted some important provisions of the contract upon which recovery was sought. While one of the assignments of error is that the demurrer to the petition was erroneously overruled we shall not at this time concern ourselves with the sufficiency of the petition for after all the ultimate rights of the parties are to be determined by all of the provisions of the policy of insurance. The final rights of the parties depend upon the construction to be given to what is called the supplementary contract. Unfortunately that contrae^ in terms is not before us. We have only the different views of the opposing parties to the effect of the contract as they have seen fit to set up the same in the pleadings. The immediate question then is whether the trial court should have entered judgment for the plaintiff in view of what the defendant pleaded the contract to be.

The answer shows that the policy was issued November 22, 1926, in consideration of a premium paid ,at that time by the insured and conditioned upon the payment of a like amount annually thereafter on the anniversary of the initial payment until twenty premiums had been paid. It further pleads that the policy provided for a period of grace of one month after the due date of the premium, during which month the insurance should continue in force. It avers that the supplementary contract provided that if the insured should thereafter become wholly disabled, and be so disabled continuously for not less than ninety days prior to the receipt by defendant of proof thereof as in the policy defined and required, and if by reason of such disability the insured was prevented from' performing any work, that the insurer would upon receipt of due and satisfactory proofs of such disability, made in the life of said Verne Harrison Skinner on forms prescribed by the company, waive the payment of premiums on said policy and on this supplementary contract during the continuance of such disability. The answer admits that the insured died on December 29, 1927, but .alleges that he did not file with or furnish to defendant any proofs of any disability he had during his life time. The answer, by denying every allegation in the petition not admitted, denied that the insured became permanently disabled as pleaded in the petition on December 20, 1927, and denied that such disability continued until the death of the insured on December 29. This denial w,as in any view of the case sufficient to have prevented a judgment upon the pleadings. But as the ease is before us we have no disposition to avoid what we conceive to be the real issue between the parties by deciding the case upon a fact which finally would not be in dispute.

Contracts of this same general character have been considered by courts in other jurisdictions. In Minnesota Mutual Life Insurance Co. v. Marshall, 29 Fed. (2d) 977, the Federal Circuit Court of Appeals sitting in Minnesota had before it a similar contract. In that case, as in this case, the insured became disabled after his second annual premium was due and within the period of grace. He died within a few days without making proof of his disability and recovery was permitted. It is not clear that the policy there under consideration was identical with the one at bar but the opinion as a whole is quite favorable to the view contended for by the plaintiff herein.

In Missouri State Life Insurance Co. v. LaFevre, 10 S. W. (2d) 267, the Court of Civil Appeals of Texas by a divided court gives a somewhat similar construction to a similar policy on facts peculiar to that case.

In Wick v Western Union Life Insurance Co., 175 Pac. 953, the Supreme Court of Washington held under circumstances analogous to those at bar that no recovery could be had.

In Walters v. Jefferson Standard Life Insurance Co., 20 S. W. (2d) 1038, the Supreme Court of Tennessee was considering a disability clause of this s,ame general character and said:

“The company had received no notice of total permanent disability when the annual premium became due in October, 1926. Hence the insured, and not the company, was liable for same. There is no provision in the policy requiring the company to pay indemnity for total permanent disability existing prior to the filing of proof thereof. The terms oí the agreement are to the contrary.”

While the character of the benefits accruing to the insured in the Walters case differ from the character claimed by. the insured in the case at bar that opinion seems to recognize that no benefits accrue to the insured until proofs of disability have been filed as required by the policy.

In Hipp v. Fidelity Mutual Life Insurance Co., 57 S. E. 892, the Supreme Court of Georgia held that a rider attached to a life policy, conferring benefits upon the insured upon the acceptance by the company of satisfactory proof of total incapacity of the insured, was not available to the latter where no proof had been received by the company of the incapacity of the insured.

In New England Mutual Life Insurance Co. v. Reynolds, 116 So. 151, 59 A. L. R. 1075, the Supreme Court of Alabama was considering a contract'similar to that pleaded herein. We quote from the syllabus:

“A provision in a policy of life insurance that if the insured should furnish proof that he has become wholly disabled by bodily injury or disease the company will waive payment of each premium as it thereafter becomes due during the continuance of the disability, makes the furnishing of 'proof a condition precedent to the waiving of premium payments, and performance of the condition is not excused by the fact that the disability of 'the insured ■consisted of insanity which commenced while the policy was in force and continued until his death.”

It is thus to be seen that in different states different views have been taken of the interpretation of clauses in insurance policies similar to that at bar, and that the conflict in these opinions is not due wholly to differences in the policies being construed. We see no analogy between this case and any of the Ohio authorities cited or examined. We are consequently required to dispose of the question as one of first impression in this state.

The answer pleads that ’the contract of insurance privided that if the insured should become wholly disabled after November 22, 1926, and be so continuously disabled for not less than ninety days “prior to the receipt by the defendant of proof thereof as thereinafter defined and required”, and if the insured by reason of such injury was prevented from performing any work, etc., the defendant would “upon receipt at its home office of due and satisfactory proof of such disability made in the life time” of the insured, on forms prescribed by the company, grant the following benefits:

“FIRST. Waiver of Premiums — Subject to the aforesaid and hereinafter mentioned conditions and commencing with the anniversary of said policy next succeeding the receipt of such due and satisfactory proof, defendant shall waive the payment of premiums on said policy and on this supplementary contract during the continuance of such disability.”

It seems to us perfectly clear that the terms of the contract as so pleaded unambiguously held the company to a waiver of premiums (1) only after the insured had been disabled for ninety days, during which time he was prevented from performing any work; (2) only after proofs of such disability had been made, and (3) during the life time of the insured, and that the plaintiff does not come within the provisions of the contract in ,any one of these three particulars. Moreover, the waiver runs to the payment of premiums which become due after the disability has ensued. This is so for the reason that the policy indicates that the waiver is in behalf of one who has been unable to work or otherwise engage in gainful occupation by means of which he might earn the premium. It is shown by the petition that in this case disability did not begin until after the premium in 1927 was due, and afforded consequently no justification for its non-payment at that time.

The answer of the defendant was good. If it actually pleaded the contract between the parties the defendant was entitled to judgment. It is accordingly ordered that the judgment be reversed and the case remanded for further proceedings according to law.

Middleton, PJ, and Blosser, J, concur.