author: By MOULTON, chairman.

text:
    CLEVELAND (City), IN RE COMPLAINT AND PETITION OF
    Before Public Utilities Commission.
    No. 24901.
    Decided December 30, 1954.
   OPINION

On June 25, 1954, the city of Cleveland filed with the commission a complaint and petition herein which asked for an annual reduction of not less than $12,000,000.00 in the existing intrastate rates and charges of The Ohio Bell Telephone Company. A number of other cities joined in this complaint and petition.

At the time said petition was filed there was also pending the application for authority to increase rates filed on December 18, 1953 by The Ohio Bell Telephone Company. Said application was designated as Case No. 24517 on the commission’s docket.

After holding a preliminary hearing on the status of the complaint and petition herein, the commission consolidated this matter with Case No. 24517 for the purposes of hearing only. Such hearings were resumed on June 28, 1954, and continued from time to time thereafter, the final argument being concluded and the respective briefs submitted as of October 15, 1954.

On this 30th day of December, 1954, the commission by order granted with some modification the authority sought by The Ohio Bell Telephone Company to increase rates in Case No. 24517 (56 0.0. 288). In view of this order and the finding therein which findings are adopted herein-this complaint and petition should be denied.

It is, therefore, ordered that the complaint and petition be dismissed.

MARTIN and WINTER, commissioners, concurring.

CONCURRING OPINION

By MOULTON, chairman.

Although I agree with the majority that the application of the cities for a reduction of $12,000,000 annually in the present rates should be denied, it necessarily follows from my dissent in the rate case that I concur for different reasons.

The rates which the cities seek to have reduced were established and went into effect September 1, 1952 by an order of the commission to which no exception was taken. While in testing the reasonableness of the rate increase applied for by the company in the rate case we were required to use the test period of one year ending on the date certain of July 1,1953, the fact is that in this proceeding which is in the nature of a complaint against existing rates and was filed on June 25, 1954, we have a right and no doubt a duty, to examine into the existing facts obtainable as of the most recent date. There is no doubt that since the date certain in the rate case, i. e., since July 1, 1953, the company has sustained increases in its cost of operation. Francis E. Mott, a witness for the company, testified (T. R. page 2255) that Ohio Bell is in the process of negotiating with the C. W. A., the labor union representing its nonmanagement employees, and that the company has made an offer to the union the effect of which would be to increase annual salaries by $1,800,000. Witness Mott further testified that since July 1, 1953 and through July 30, 1954, the company has added plant in the value of $30,428,000. Witness Sperling for the company testified that it is estimated that gross plant amounting to $102,000,000 will have been added to the telephone plant in service during the years 1953 and 1954.

Thus, with increased costs and additional investment in plant since the date certain, there is an element of attrition at work which operates to reduce the earnings subsequent to the test period for which they have been established. This factor must be recognized in a proceedings of this nature wherein it is sought to reduce existing rates. In my opinion it is most important that nothing be done which would in any way hinder or impair the construction program of Ohio Bell which has been designed to meet and keep pace with the constantly increasing demands for service that are made upon it. It is going forward we understand in 1955, with a $58,000,000 expenditure on new plant. From September 1, 1945 to the end of 1953, 907,563 telephones were added to the Ohio Bell System — a growth of approximately 83% in a little over eight years. At the end of 1953 there were only 3,247 applications for service which were not filled and only 31 of these were over six months old while at the end of World War II there were over 100,000 applicants waiting for service. These facts demonstrate that the company has been alert to its responsibilities as a public utility and that it plans for the future contemplate a continued expansion of facilities to meet its increased demands.

As I have indicated in my opinion in the rate case, I believe present revenues are sufficient to keep the company in a sound economic position and that the existing level of income will permit it to continue with its expansion program. Considering the attrition factor, it is my opinion that a reduction in rates at this time of $12,000,000 annually as requested by the city of Cleveland and other cities, would imperil the construction program which the company is carrying on and endanger the financial soundness of the company.

It will be noted by reference to my opinion in Case No. 24517 that I believe the present rates to be adequate and sufficient to maintain the company in a sound financial position. I held that the application for an increase in rates should be denied but I did not say nor do I believe that the present rates are excessive or unreasonable, and the various tests which I applied in my judgment demonstrate that fact. The rate of return produced by the present rates on an RCN base is not excessive either on the basis of the all equity capital structure of the company or on the basis of an assumed debt of 33-1/3%.

It is my opinion that if the commission would have denied the company’s application for an increase in rates along with its refusal of the cities’ request for a reduction in existing rates that substantial justice would have been accomplished and that the result therefrom would be fair and equitable to both the company and to its subscribers.


source: Caselaw Access Project

author: By STEVENS, J:

license: Public Domain

text:
    SIELING, Plaintiff-Appellant, v. MAHRER, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22743.
    Decided June 10, 1953.

      Boer, Mierke, Thomas, McClelland & Handy, Cleveland, for plaintiff-appellant.
    Miller, Davis & Folk, Cleveland, for defendant-appellee.
    (DOYLE, PJ, STEVENS, J, HUNSICKER, J, of the Ninth District sitting by designation.)
   OPINION

By STEVENS, J:

Plaintiff sued defendant, a physician and surgeon who limited his practice to radiology,1 to recover for injuries allegedly resulting from the malpractice of defendant. Trial to a jury resulted in a verdict and judgment for defendant, from which judgment plaintiff has appealed upon questions of law.

The petition filed by plaintiff contained four specifications of negligence, as follows:

“Plaintiff further says that defendant was careless and negligent in diagnosing her physical condition and subjecting her to x-ray therapy on May 20, 1944, and thereafter, when he knew such treatment was highly dangerous and frequently resulted in destruction of the skin and other tissues of the body.

“Plaintiff further says that defendant was careless and negligent in subjecting her to x-ray therapy on May 20, 1944 when he knew, or should have known, that her physical condition did not require said therapy; that said treatment was highly dangerous and likely to result in severe injury to the skin and tissues of plaintiff’s body.

“Plaintiff further says that in the process of said treatment, the defendant carelessly, negligently and unskillfully exposed the plaintiff’s body to roentgen rays of such excessive strength and intensity and for such excessive periods of time that as a direct and proximate result thereof the plaintiff sustained the injuries hereinafter described.

“Plaintiff further says that she remained thereafter in the care of the defendant until the month of November, 1949, during which period of time the defendant negligently prescribed for and treated the plaintiff for the purpose of reducing the injuries so by her sustained as a result of the x-ray therapy, but that said treatment was of no effect, and contrary to good medical practice, and the condition above described continued unabated; that all defendant’s efforts to give plaintiff relief having failed, she, the plaintiff, did during the month of January, 1950, submit to so-called plastic surgery for the removal and replacement of said burned tissues, and she is currently hospitalized in connection therewith.”

Upon motion of defendant, the first three specifications of negligence were withdrawn from the consideration of the jury at the conclusion of plaintiff’s case and the cause was submitted upon the last specification above set forth.

It is urged by appellant that the court erred in withdrawing from the jury the first three specifications of negligence.

We have read with care the entire bill of exceptions in this case and we are unanimously of the opinion that the plaintiff’s own evidence not only justified but required the trial court to withdraw those claims of negligence from the jury because of a complete failure of proof to substantiate them.

It is next claimed that the court erred in refusing to charge the jury upon the doctrine of res ipsa loquitur in the general charge, as requested by plaintiff.

The petition of plaintiff pleaded, and her evidence was addressed to the establishment of, negligence of the defendants in diagnosing and treating plaintiff’s disability.

The general rule as to the application of the doctrine of res ipsa loquitur is stated in 70 C. J. S. Physicians and Surgeons, Sec. 62a, as follows:

“The doctrine * * * is not applicable * * * in cases involving the diagnosis and scientific treatment. Furthermore, the doctrine cannot be invoked in aid of specific charges of negligence, and is inapplicable where the complaint alleged and plaintiff affirmatively showed how his injuries were inflicted.”

Speaking of the doctrine in the case of Kaltenbach v. C. C. C. Highway Inc., 82 Oh Ap 10, Judge Doyle of this court stated:

“2. The principle does not apply, inter alia (a) when specific acts of negligence, claimed to have proximately caused the injuries, are pleaded by the injured person and evidence is introduced tending to support such claims of culpable conduct * * * ”

We conclude that the trial court did not err in its refusal to charge upon the doctrine of res ipsa loquitur as requested by plaintiff.

The next assigned error is that,

“the trial court erred in refusing to grant plaintiff’s request to instruct the jury that the first three items of negligence contained in plaintiff’s petition had been withdrawn from their consideration by the court, and that they were not voluntarily withdrawn by the plaintiff.”

The appellant relies upon Lewistown Foundry & Machine Co. v. Hartford Stone Co., 92 Oh St 76. However, the first paragraph of the syllabus of that case states:

“1. Where no evidence is offered upon an issue joined by the pleadings in the case, the trial court is not required to charge the jury upon such issue, but, on the contrary, should direct the jury not to consider it.”

That is precisely what the trial court did in this case.

We find no prejudicial error under this specification of error.

As to the other errors assigned, they have been considered, and we find no prejudicial error as to any of them.'

Judgment affirmed.

DOYLE, PJ, HUNSICKER, J, concur.


author: By MERRICK, J.

text:
    ROUTA, Minor, In re.
    Probate Court, Cuyahoga County.
    No. 513328.
    Decided December 5, 1955.

      William J. McDermott, Cleveland, for applicant.
    Phillip C. Barragate, Ernest A. Gottermeyer, Cleveland, contra.
   OPINION

By MERRICK, J.

This matter is before the Court on the application for appointment of a guardian of the person of Deborah Routa, a child of the age of six years. The applicant is Mrs. Ruth Ferrier, an aunt of the child, whose mother died at childbirth. The father of the child opposes the granting of the application.

Since birth, the aunt has had custody and care of this child by arrangement with the father who has paid for its maintenance under an arrangement with the aunt. The father has indicated a desire to take the child and this has led to the filing of the application for guardianship.

All the evidence indicates that the aunt has given the child excellent care and attention and has bestowed upon her the love and affection of a maternal relationship. There is no evidence that the father cannot provide the child with an adequate home and support. Much evidence and argument has been directed to the claim that the child will have difficulty adjusting herself to a new home and strange surroundings and that it would be for the best interest of the child to leave her in the care of her aunt rather than move her to a new environment.

The evidence discloses that the mother died at the birth of the child. Whereupon the father asked the aunt to care for the child and a mutual understanding was arranged providing for the father to pay a weekly sum for the support of the child. By stipulation of counsel it was agreed that the father has made all payments for such support and there is no claim of neglect or abandonment.

As a general rule, parents are entitled to the custody of their minor children. When the mother being dead it is found that the father is a suitable person and the fitness of the home is not in dispute, and such father is able and willing to support and care for his child, the father’s right of custody is paramount to that of all other persons. In re Duffy, 78 Oh Ap 16. Rowe v. Rowe, 44 O. O. 224, 58 Abs 497. The parent or parents are entitled to the custody of a child if they are fit persons.and the child is neither delinquent, neglected nor dependent. Paddock v. Ripley, 149 Oh St 539.

The affluence of a relative who provides a good home for a child with every promise of a secure future is not controlling as against the rights of a parent to have custody even though such parent might not be in a position to furnish as adequate a home or promising forseeable future. It is the natural right of a parent to have the first privilege to nurture and care for his own child, based upon the common experience that the child’s best interests are ordinarily served when assured the love, care and attention of a parent. Miller v. Miller, 50 Abs 561.

A parent who temporarily places a child with a relative does not waive any right to demand a return of such child at a later time. Ohler v. Ohler, 31 O. O. 152. Parents have a right to the custody of their children, the same as they have a right to the possession of property which they may acquire; and the fact that some one may think that the children can be reared better by some one else is no justification for judicial interference, because if this were the rule, there are thousands of children in this community, and in every other, whose parents upon this pretense would be deprived of their custody. In re Konneker, 30 Oh Ap 510.

The law certainly does not contemplate the taking of children from their parents because in the estimation of some persons, the children can be better provided for and more wisely trained otherwise. Probably from mere considerations of healthful and hygienic living and systematic education and training this would be true in the cases of thousands of families of wealth and respectability. It is only in instances where there is demonstrated incapacity or something akin to criminal neglect that the law is justified in interfering with the natural relations of parent and child. People v. Gutierres, 47 Cal. App. 128.

A parent has a right to the custody of his child against all other persons unless and until it is shown that the parent has relinquished his right to custody by contract, forfeited it by abandonment, or has lost it because of his unfitness or inability to provide a suitable home for the child. There has been no such showing in this case.

The application for appointment of guardian will be denied at applicant’s costs. A journal entry may be drawn accordingly.


author: By WEBER, J.:

text:
    VOSS, Plaintiff, v. VOSS, Exrx. et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-147681.
    Decided June 20, 1955.

      Dolle, O’Donnell, Cash, Fee & Hahn, Cincinnati, for plaintiff.
   OPINION

By WEBER, J.:

Arthur H. Voss died, testate, on October 17, 1953. He drew his will without the benefit of counsel. It was executed on July 20, 1945; at the top of the page is the date July 20, 1945. The entire will reads as follows:

“July 20. 1945

LAST WILL AND TESTAMENT OF ARTHUR H. VOSS

It is my will that in the event of my death all my property real and personal shall be held in trust by the Western Bank & Trust Co. Cincinnati, for a period of 5 years for my daughter Jean Voss Nolan. Said daughter to be paid the interest on said estate for this period and to be given the entire estate outright at the end of 5 years.

In the event of her death before mine, or before the expiration of 5 years from date, provided she dies without children, then my entire estate shall go outright to my sister Luella — brothers Raymond and Clifford and Clara Bollman. 1/6 to Clifford — 1/3 to Luella — 1/3 to Raymond and 1/6 to Clara Bollman.

If Jean dies before the expiration of said five years leaving a child or children, said estate shall be held in trust for said children for a period of 25 years from date of Jean Voss Nolan’s death, the child or children to be paid the interest only and lump sum at expiration of trust.

My daughter to be executrix without bond.

Albert Cash and Edward Wehmer Attorneys.

Signed this 20th. day of July 1945

Arthur H. Voss

Witnessed

L. A. Kallies

Stella Schmidt”

The will was probated on November 13, 1953. The defendant, the Fifth-Third Union Trust Company, was appointed Trustee on April 6, 1955. The plaintiff, Jean Voss, the daughter of the testator, on April 19, 1955 filed a suit in partition, she being the owner of an undivided one-half interest in the real estate described in the petition, which was acquired from her mother. She is also the primary beneficiary of the undivided one-half interest in said real estate devised by the will of her father. The defendant, the Fifth-Third Union Trust Company, as Trustee, filed an answer joining in the prayer for partition and also a cross-petition asking for a construction of the provisions of said will and further, if the Court finds there are future contingent interests created by said will, that a sale be made of said real estate under the provisions of §§5303.21 to 5303.31 inclusive, R. C., the so-called Disentailment Statutes.

All possible beneficiaries who are now living have been made parties and have waived service of summons and entered their appearance both to the petition and the cross-petition.

The first four questions involve the meaning of the words “from date” contained in that part of paragraph two which reads

“In the event of her death before mine, or before the expiration of 5 years from date,”

and in the provision in the third and last dispositive paragraph, which reads:

“If Jean dies before the expiration of said five years.”

If possible, particularly when the will is drawn by a layman, such interpretation should be made as will harmonize all the provisions of the will and make them effective so that the testator will not die wholly or partially intestate. If the words “from date” be construed to mean from the date of the execution of the will and the date at the top of the page, many contradictions and inconsistencies will result. These are too numerous to mention; one illustration will suffice. The testator begins the will “in the event of my death.” Death is a certain event; only the time and cause are contingent. If given a literal interpretation, the words “in the event” make the will depend upon a contingency and we find that contingency by reference to the words “after date,” so that the will would read “If my death occurs within five years after date.” The testator survived that period, and consequently if that interpretation is given, the will cannot take effect and the testator died intestate. This result should be avoided if possible.

If he words “after date” are interpreted to mean after the effective date of the will, that is, after the date of the death of the testator, pracically all inconsistencies and contradictions disappear and there is no intestacy either wholly or partially, according to the interpretation of the estates created, hereinafter decided. Is there anything in the language of the will which justifies and in fact requires interpreting the ambiguous words “after date” as referring to the effective date of the will? In the second paragraph the testator creates certain interests in certain relatives in these words: “In the event of her (meaning the daughter and primary beneficiary) death before mine, or before the expiration of 5 years from date.” It was possible that the daughter might die at a time which was before the death of the testator and which also before the expiration of five years from date, that is, the alternative contingencies based on time mean practically the same thing. A logical construction is that the testator, by creating contingencies in the alternative, intended distinct .contingencies, based upon distinct and opposing periods. The words “five years from date”'must be read in connection with the words “before my death” and as opposed thereto, in other words, as a period after his death. In addition thereto, the words “after date” logically refer to the effective date of the will, before which time there is no will.

The following answers are made to the eight questions propounded:

Question 1. The date intended is the effective date of the will, that is, five years after the death of the testator.

Question 2. The effect of this construction upon the other provisions of the will is to render effective the gift to the daughter, the trust porion of which cannot begin until the death of the testator. Also the contingency “her death within five years after my death” has not yet expired and the limitations over may become effective and the defeasible estate of the daughter has not yet become absolute and any purchaser of the real estate before the expiration of that period would take only a defeasible title.

Question 3. Since the daughter has a present vested, although defeasible estate, as hereinafter decided, the trust begins immediately upon the death of the testator. There is nothing in the will requiring a contrary conclusion.

Question 4. With reference to the contingency in the third paragraph, “If Jean dies before the expiration of said five years,” said period begins at the death of the testator. This period is the same as that provided in the second paragraph; the limitations over being in the alternative, if she dies leaving children or if she dies without leaving children but necessarily based upon the same point of time. In this limitation over to the children, if any survive her, the contingency “if she dies before me” is omitted; it was not necessary; if her death preceded that of the testator, the gift being to a daughter, if she died before the testator, survived by issue, said issue would take under the lapsed gift statute.

Sec. 2107.52 R. C.; Phillips, Executor, v. McConica, 59 Oh St 1; Flinn, Administrator, v. Brodbeck, et al, 147 Oh St 49.

Question 5. The gift over to the children of the daughter will vest, if at all, within five years after the death of the testator; only payment is postponed. The title to the Trustee also will vest, if at all, within that period; the duration of the trust, although more than twenty-five years after the death of the testator, is immaterial since the title will vest, if at all, within the prescribed period. There is no perpetuity and §2131.08 R. C. is not violated.

Question 6. The answer to question 5 covers this.

Question 7. There can be no partial revocation by cancellation or mutilation in this manner nor can a substitute gift be made in this manner after the execution of the will. If the original provisions can be ascertained, as in this case, they remain affective.

Giffin, et al v. Brooks, 48 Oh St 211; Coghlin v. Coghlin, et al, 79 Oh St 71.

Question 8. If the gift over to the children of Jean, daughter of the testator, becomes effective, payment of the income should be made by the trustee to said children in equal proportions and during their minority should be made to the guardian.

In addition to the specific questions asked, the prayer of the cross-petition requires a determination of the estates created by the will, particularly with reference to the validity of the prayer of the petition for partition and the prayer of the cross-petition that the real estate be sold under the provisions of §5303.21 et seq., R. C., so that the purchaser takes an absolute title free from the contingent interests.

The Court holds that Jean Voss, the daughter of the testator, at the death of the testator took a vested interest in the property disposed of by the will, including a one-half interest in the real estate described in these proceedings, subject to the trust for the period of five years commencing at the death of the testator, payment of the principal being postponed for said period. Her interest, though vested, is a feasible fee subject to be defeated, if she dies before the testator, which has not happened, and also subject to be defeated if she dies within the five year period commencing at the death of the testator.

Under paragraph two, two contingencies are specified, each of which is twofold, — (1) death of the daughter, the primary donee, without issue before the death of the testator. This contingency has not happened; if it had happened the limitation over, being upon a contingency which must occur before the death of the testator, would be a substitute gift and not an executory devise. (2) Death of the daughter without issue before the expiration of the five year period after the death of the testator. This contingency has not happened; consequently, there still exists contingent interests in the following persons by way of executory devise, that is, a fee after the defeasible fee of the daughter:

One-sixth to the testator’s brother Clifford; One-third to his brother Raymond F.; One-sixth to his sister-in-law Clara Bollman; One-third to Edward Wehmer, only child of the testator’s sister, Luélla Wehmer. The gift to Luella Wehmer is to a blood relative, and she having predeceased the testator, the gift did not lapse, but goes to the surviving issue.

See Phillips v. McConica; Flinn, Adm. v. Brodbeck, supra.

Although this interest is contingent, the contingency is not that Luella Wehmer shall survive the testator; therefore the donee’s death before the death of the testator does not prevent the application of the lapsed gift statute. The other above mentioned donees having survived the testator, and their contingent interest not being dependent upon their surviving the contingency designated, if they should die before the expiration of said five year period, their interest would descend to their heirs at law, such interest being descendible. Sec. 2131.04 R. C.

The limitation over to the children of the daughter, is also a contingent executory devise which becomes absolute if the daughter dies before the expiration of said five year period, leaving children. They would take equal shares.

The question arises whether all necessary parties are in the case, and that raises the question whether the unborn children are made parties in the manner required by law, that is, by representation. This question is important with respect to the action for partition and also with respect to the action for construction of the provisions of the will. The test of whether there is virtual representation of an unborn person is usually stated to be that the interest of the living person, who is a party to the suit, is the same as the interest of the unborn person. A more accurate test is whether their interests are conflicting, in the sense that a decision would result in benefit to the party in court at the expense or disadvantage of the unborn. In this case there is no such conflict. The questionable contingency, upon the happening of which one or the other group takes, is the same. If the primary donee dies before the expiration of the specified period without children, the brothers, et al, take. If she dies before the specified period leaving children, the children take. If the daughter survives the specified period, neither group takes. The only contention is to determine what period is specified. Each group is interested in having the same determination and conclusion made, that is, that the five year period has not expired because it begins at the death of the testator. Therefore, it is the opinion of the Court that the unborn are virtually represented by the fact that the brothers, et al, are parties. Whether this conclusion is right is immaterial if the case proceeds under §5303.21 et seq., R. C., which is the only method by which the purchaser may take title free from the contingent interests. This method may be combined with the actions for partition and for instructions.

Schneider, et al, v. Wolf, et al, 120 Oh St 524.

Under these provisions only parties in being are necessary parties and this is so because the sale does not eliminate the contingent interests but merely removes them from the real estate, the proceeds of the sale being held in trust for the possible future beneficiaries and their interest in the proceeds retaining the characteristic of real estate.

The Court holds that if the procedures described by §5303.21 to §5303.31 inclusive, R. C., are followed, a sale may be made at the present time of the real estate described in the pleadings and that the purchaser will take title thereto free from any interests which the beneficiaries designated in paragraph two of the will or any interests which the children, if any, of the daughter of the testator, may have. The proceeds of such sale must be held in trust by the trustee to pay the income therefrom to the primary beneficiary, the daughter of the testator, during the five year period from the death of the testator; if she is living at the end of that period, the trustee will pay to her the principal of the proceeds of the sale; if she is not living at the end of that period, and if she dies without children, the principal of the proceeds of the sale will be paid to the defendants Raymond F. Voss, Clifford W. Voss, Clara Bollman, and Edward Wehmer, or their heirs, in the proportions set forth above. If she dies during said period leaving children, a trustee should pay the income in equal shares to the guardian of said children during their minority and then to the children; after the expiration of twenty-five years from the death of the daughter of the testator, the principal of the proceeds should be paid to said children in equal shares or their heirs.

Please present an entry.


author: By WARREN, C. J.

text:
    BROWN et, Appellants, v. BOARD OF EDUCATION OF TOPEKA, Shawnee County, Kansas et, Appellees. BRIGGS et, Appellants, v. ELLIOTT et, Appellees. DAVIS et, Appellants, v. COUNTY SCHOOL BOARD OF PRINCE EDWARD COUNTY, VIRGINIA et, Appellees. BOLLING et, Petitioners, v. SHARPE et, Respondents. GEBHART et, Petitioners, v. BELTON et, Respondents.
    United States Supreme Court.
    (Nos. 1-5.
    Decided May 3, 1955.)

      Robert L. Carter, Martinsville, Va., for appellants in No. 1.
    Harold R. Fatzer, Topeka, Kan., for appellees in No. 1.
    Thurgood Marshall, New York City, Spottswood W. Robinson, III, Richmond, Va., for appellants in Nos. 2 and 3.
    S. E. Rogers, Summerton, S. C., Robert McC. Figg, Jr., Charleston, S. C., for appellees in No. 2.
    Archibald G. Robertson, Richmond, Va., J. Lindsay Almond, Jr., Atty. Geni., for appellees in No. 3.
    George E. C. Hayes, James M. Nabrit, Jr., Washington, D. C., for petitioners in No. 4.
    Milton D. Korman, Washington, D. C., for respondents in No. 4.
    Joseph Donald Craven, Wilmington, Del., for petitioners in No. 5.
    Louis L. Redding, Wilmington, Del., for respondents in No. 5.
    Richard W. Ervin, Ralph E. Odum, Tallahassee, Fla., for State of Florida, I. Beverly Lake, Raleigh, N. C., for State of North Carolina, Thomas J. Gentry, Little Rock, Ark., for State of Arkansas, Mac Q. Williamson, Oklahoma City, Okla., for State of Oklahoma, C. Ferdinand Sybert, Ellicott City, Md., for State of Maryland, John Ben Shepperd and Burnell Waldrep, Austin, Tex., for State of Texas, Sol. Gen. Simon E. Sobeloff, Washington, D. C., for the United States, amici curiae.
   OPINION

By WARREN, C. J.

These cases were decided on May 17, 1954. The opinions of that date, declaring the fundamental principle that racial discrimination in public education is unconstitutional, are incorporated herein by reference. All provisions of federal, state, or local law requiring or permitting such discrimination must yield to this principle. There remains for consideration the manner in which relief is to be accorded.

Because these cases arose under different local conditions and their disposition will involve a variety of local problems, we requested further argument on the question of relief. In view of the nationwide importance of the decision, we invited the Attorney General of the United States and the Attorneys General of all states requiring or permitting racial discrimination in public education to present their views on that question. The parties, the United States, and the States of Florida, North Carolina, Arkansas, Oklahoma, Maryland, and Texas filed briefs and participated in the oral argument.

These presentations were informative and helpful to the court in its consideration of the complexities arising from the transition to a system of public education freed of racial discrimination. The presentations also demonstrated that substantial steps to eliminate racial discrimination in public schools have already been taken, not only in some of the communities in which these cases arose, but in some of the states appearing as amici curiae, and in other states as well. Substantial progress has been made in the District of Columbia and in the communities in Kansas and Delaware involved in this litigation. The defendants in the cases coming to us from South Carolina and Virginia are awaiting the decision of this court concerning relief.

Full implementation of these constitutional principles may require solution of varied local school problems. School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts.

In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them.

While giving weight to these public and private considerations, the courts will require that the defendants make a prompt and reasonable start toward full compliance with our May 17, 1954, ruling. Once such a start has been made, the courts may find that additional time is necessary to carry out the ruling in an effective manner. The burden rests upon the defendants to establish that such time is necessary in the public interest and is consistent with good faith compliance at the earliest practicable date. To that end, the courts may consider problems related to administration, arising from the physical condition of the school plant, the school transportation system, personnel, revision of school districts and attendance areas into compact units to achieve a system of determining admission to the public schools on a nonracial basis, and revision of local laws and regulations which may be necessary in solving the foregoing problems. They will also consider the adequacy of any plans the defendants may propose to meet these problems and to effectuate a transition to a racially nondiscriminatory school system. During this period of transition, the courts will retain jurisdiction of these cases.

The judgments below, except that in the Delaware case, are accordingly reversed and remanded to the district courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases. The judgment in the Delaware case — ordering the immediate admission of the plaintiffs to schools previously attended only by white children— is affirmed on the basis of the principles stated in our May 17, 1954, opinion, but the case is remanded to the Supreme Court of Delaware for such further proceedings as that court may deem necessary in light of this opinion.

It is so ordered.

Judgments, except that in case No. 5, reversed and cases remanded with directions; judgment in case No. 5 affirmed and case remanded with directions.

      . 347 U. S., 483, 74 S. Ct., 686, 53 O. O. 326, 98 L. Ed. 873, 347 U. S. 497, 74 S. Ct. 693, 53 O. O. 331, 98 L. Ed. 884.

      . Further argument was requested on the following questions, 347 U. S. 483, 495-496, note 13, 74 S. Ct. 686, 692, 53 O. 0. 326, 98 L. Ed. 873, previously propounded by the Court:
      “4. Assuming it is decided that segregation in public schools violates the Fourteenth Amendment
      “(a) would a decree necessarily follow providing that, within the limits set by normal geographic school districting, Negro children should forthwith be admitted to schools of their choice, or
      “(b) may this Court, in the exercise of its equity powers, permit an effective gradual adjustment to be brought about from existing segregated systems to a system not based on color distinctions?
      “5. On the assumption on which questions 4 (a) and (b) are based, and assuming further that this Court will exercise its equity powers to the end described in question 4(b),
      “(a) should this Court formulate detailed decrees in these cases;
      “(b) if so, what specific issues should the decrees reach;
      “(c) should this Court appoint a special master to hear evidence with a view to recommending specific terms for such decrees;
      “(d) should this Court remand to the courts of first instance with directions to frame decrees in these cases, and if so, what general directions should the decrees of this Court include and what procedures should the courts of first instance follow in arriving at the specific terms of more detailed decrees?”

      . The cases coming to us from Kansas, South Carolina, and Virginia were originally heard by three-judge District Courts convened under 28 U. S. C. §§2281 and 2283, 28 U. S. C. A. §§2281, 2284. These cases will accordingly be remanded to those three-judge courts. See Briggs v. Elliott, 342 U. S., 350, 72 S. Ct. 327, 96 L. Ed. 392.

      . See Alexander v. Hillman, 296 U. S. 222, 239, 56 S. Ct 204, 209, 80 L Ed 192.

      . See Hecht Co. v. Bowles, 321 U. S. 321, 329-330, 64 S. Ct. 587, 591, 592, 88 L. Ed. 754.


author: By THE COURT.

text:
    MACLEAN, Plaintiff-Appellant, v. J. S. MACLEAN COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5240.
    Decided March 21, 1955.
    James M. Hengst, Columbus, for plain tiff-appellant.
    Harrison W. Smith, Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted on motion by the defendants-appellees seeking an order dismissing the appeal on questions of law and fact for the reason that the Court does not have jurisdiction to entertain such an appeal. The record discloses that the action originated in the Probate Court for Franklin County, Ohio, in which a declaratory judgment was sought by Jane S. MacLean for a determination of her rights in the estate of her deceased husband, and also praying that a conveyance of certain shares of stock made by the decedent during his lifetime be set aside on the grounds of fraud. Appellees rely upon the case of Fletcher v. Stanton, 69 Abs 174, in which this Court held that an action for declaratory judgment was not one formerly cognizable in a court of chancery and therefore not appealable on law and fact. It will be noted though that in the cited case no equitable relief was sought, so it is not on all fours with the case at bar.

Appellant cites the case of P. M. Casualty Co. v. P. G. Lines, 68 Oh Ap 139, which was an action for declaratory judgment and cancellation of an insurance policy. The Court held in this instance that an appeal may be had on law and fact, the first paragraph of the syllabus of which provides:

“Where a petition, praying for a declaratory judgment and cancellation of a liability insurance policy, states a cause of the character of an action in chancery for cancellation, the action will be treated as one in chancery, allowing an appeal on questions of law. and fact.” ■

We find also that the Supreme Court appears to have passed upon this same question in the case of Meyer v. Meyer, 153 Oh St 408, fifth paragraph of the syllabus: '

“An action is a chancery case if it is necessary to determine whether plaintiff is entitled to equitable relief before other relief can be allowed.”

In the case at bar it appears that a determination of the legality of the transfer of the shares of stock must be determined before there can be a' declaratory judgment adjudication.

The motion will be overruled.

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


text:
    MACLEAN, Plaintiff-Appellant, v. J. S. MACLEAN COMPANY et, Defendants-Appellees.
    No. 5240.
    Decided April 6, 1955.
   OPINION

By THE COURT.

We have given further consideration to the motion submitted by the appellees and not that we failed to give consideration to the jurisdiction of the Probate Court. If as contended by the appellant the primary relief sought was equitable, and if such were correct, then the Probate Court would not have had jurisdiction in the first instance, as it does not have general equitable power. Sec. 2101.24 R. C. In the case of In re Estate of Dickey, 87 Oh Ap 225, at page 264, Wiseman, J., says:

“The Probate Court does not have general equity powers conferred upon it under that section. That section gives the Probate Court, in matters within its jurisdiction, the authority to exercise equity powers in disposing of matters where there is no legal remedy or where the legal remedy is inadequate. Equity follows the law, and cannot be invoked to destroy or supplant a legal right.”

It will be noted that the cases relied upon by the appellant and cited by the Court in its original opinion were cases which originated in the Common Pleas Court which does possess general equitable powers. We therefore conclude that the only question properly before the Probate Court was one of law and therefore the appeal on questions of law and fact may not be maintained.

The motion will be sustained, the appeal on law and fact will be dismissed and the case retained for determination on questions of law only. The appellant will be granted leave to perfect said appeal in accordance with Rule VII of this Court.

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


author: By BARTLETT, J.

text:
    OLIVER, Jr., Plaintiff, v. CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant.
    Common Pleas Court, Franklin County.
    No. 189585.
    Decided July 16, 1955.

      Schwenker, Teaford, Brothers & Solsberry, Columbus, for plaintiff.
    Wilson & Rector, Columbus, for defendant.
   OPINION

By BARTLETT, J.

1. THE MOTION TO MAKE THE 2nd DEFENSE OF THE ANSWER DEFINITE AND CERTAIN, IS OVERRULED.

It is not entirely settled in Ohio, whether or not a plea of contributory negligence must state the facts which constitute such negligence. 29 O. Jur. Negligence, Sec. 147, p. 621-622.

It must be conceded that the theory of Code Pleading has often become corrupted by the settled practice over the years in many Courts, “a mongrel form of answer” not contemplated by the reformed system, and not in harmony with its true theory, by the sanction of uniform practise, and the approval of numerous Courts, becomes regarded as the settled and authorized practice. Phillips on Code Pleading, Sec. 503, p. 536.

“It is clear that in pleading contributory negligence it is not necessary to allege specific acts of negligence. The mere general allegation of plaintiff’s want of due care contributing proximately to his injury, is sufficient and good as against a motion to make definite and certain.” Marshall, C. J., opinion p. 135, in case of Knisely v. Community Traction Co., 125 Oh St 131, on similar a motion in the cases of Dougherty v. Beasley Grove, No. 184, 580, and Nightingal Barnhart Sales, Inc., No. 185,704 Judges Clifford and Gessaman of this Court, accepted and followed the corrupted form of so pleading, approved by Marshall, C. J., in the Knisely case, supra; and this appearing to have become the settled and authorized practice in the Courts of the County, this branch of the Court succumbed thereto, in the case of Starroff v. Walker’s, Inc., No. 187,665.

“It has been said to be a general rule and practice for a judge of the Common Pleas Court to follow the former decisions of that Court that are unreversed, even though made in a different case.” 11 O. Jur. Courts, Sec. 128, p. 774; Heintz v. Caldwell, 180 D. N. p. 725, 6 O L. Rep. 45; Merrick et al v. Merrick, et al, 57 Abs 49. See also, Ranney’s, J., opinion in Kearney v. Buttles, 1 Oh St 362, 366; 11 O. Jur. Courts, Sec. 138, p. 786.

This branch of the Court might well have differed with the opinions of his Colleagues at the time, but was disinclined to overrule the numerous decisions which seem to have settled the practice and propriety of such pleadings in this county.

The motion to make the second defense of the answer, definite and certain is overruled. An entry may be drawn accordingly, saving the exceptions of counsel for plaintiff.


author: By STEWART, Circuit Judge. By McALLISTER, Circuit Judge.

text:
    NORTHWEST AIRLINES, INC. et, Appellants, v. GLENN L. MARTIN COMPANY, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12130.
    Decided May 31, 1955.

      Craig Spangenberg, M. C. Harrison, Harrison, Spangenberg & Hull, Cleveland, Francis D. Butler, St. Paul, Minn., for appellants.
    Edward D. Crocker, C. M. Horn, Arter, Hadden, Wykoff & Van Duzer, Victor DeMarco, Jones, Day, Cockley & Reavis, Cleveland, for appellee.
    •. Before SIMONS, Chief Judge, and McALLISTER and STEWART, Circuit Judges.
   OPINION

By STEWART, Circuit Judge.

This was an action for damages brought by appellant, hereinafter referred to as “Northwest,” a commercial airline company, against appellee, hereinafter referred to as “Martin,” a manufacturer of airplanes. The action was based upon Martin's alleged negligence in the design and manufacture of five “Model 202” airplanes purchased by Northwest, resulting in the loss of one of the planes and the temporary loss of use of four others. No questions of warranty are involved, since the purchase agreement in effect limited Martin’s liability to that imposed on it by law for its negligence.

The trial lasted approximately three months. The jury deliberated for ten days before returning general verdicts in favor of Martin. The appendices on appeal number more than two thousand pages. We are told that the ease is one of great importance not only because of its immediate impact upon the rights and liabilities of the parties, but perhaps even more so because of its supposed impact upon the airline and aircraft industries, and the relationships between them. Yet the case remains a negligence action, involving for the most part issues of fact, prolix and technical though they be. From this thick overlay of factual controversy emerge familiar questions of ordinary care, proximate cause, contributory negligence and assumption of risk.

Martin is a Maryland corporation, with its plant and offices near Baltimore. It has been engaged in the design and manufacture of airplanes since 1909. Throughout World War II Martin devoted its efforts completely to the designing and building of military planes, as did the entire aircraft industry. It became apparent in the closing days of the-war that the post-war period would provide a large potential market for modern, economical commercial transport planes. Martin decided to enter this market, and accordingly embarked upon the design of the “202,” a fast, two-engine airplane which would incorporate many of the engineering and manufacturing advances made during the war period. Commencing early in 1945 the project moved ahead until by 1946 more than five hundred of Martin’s designing engineers were working on the “202.”

Some time in the summer of 1946, Northwest decided to purchase ten Martin 202’s. The formal contract was not signed until February 24, 1947, but it was dated August 31, 1946, and the evidence shows that Northwest’s decision to purchase the planes had been made in June of 1946. These ten airplanes were delivered to Northwest in 1947, and they proved so satisfactory that Northwest decided to buy three more 202’s and signed the contract for their purchase on December 23, 1947. Northwest made subsequent purchases, so that it owned and was operating a fleet of twenty-five Martin 202’s on August 29, 1948, the date on which occurred the dramatic events which provide the immediate background of this case.

At 3:30 p. m. on that day a Northwest 202 airplane, identified hereinafter as “No. 44,” took off from Chicago on a regularly scheduled nonstop flight for Minneapolis. It carried thirty-three passengers, a pilot, co-pilot and stewardess. No. 44 was one of the original ten 202’s purchased from Martin, and, at the time of taking off, had flown a total of 1,321 hours, or about five per cent of its expected service life. So far as was then known, the airplane was in perfect condition.

During its flight the plane maintained routine operational radio contact with the ground, and at 4:55 p. m. it reported that it was over La Crosse, Wisconsin and estimated that it would arrive over the Hastings marker (near Minneapolis) at 5:21 p. m. The plane was authorized to commence its descent so as to pass over the Hastings marker at an altitude of 2,500 feet and was directed to report when it passed through the 7,000 foot level on its descending path. At 4:56 p. m. the pilot radioed that he was beginning his descent and at 4:59 p. m. he advised that he was passing through the 7,000 foot level. No further messages were received from No. 44.

At about this time the plane was observed by witnesses on the ground proceeding into a violent thunderstorm. A few minutes later, at approximately 5:05 p. m., the left wing tore off, and the airplane crashed near Foutain City, Wisconsin, a few miles to the northeast of Winona, Minnesota. All of the passengers and crew were killed. Subsequent investigation revealed that the immediate cause of the crash was the breaking of a front wing spar in the left wing at the point where the outer section of the wing was attached.

Later the same day, when all that was known of No. 44 was that it was overdue, another Northwest 202, hereinafter referred to as “No. 42,” was flown on a regularly scheduled round-trip flight from Minneapolis to Duluth. No. 42 was also one of the original ten 202’s purchased from Martin by Northwest. It too had flown only a small fraction of its expected service life. The weather was fair, the air smooth, and the trip uneventful, except that the pilot noticed that in order to keep the plane in level flight, it required a somewhat unusual amount of extra “trim tab.” After the pilot landed No. 42 in Minneapolis, he made a routine report, including a statement about the unusual trim conditions which he had encountered, and then got into his automobile to drive home. Fortunately, however, he changed his mind and returned to the ramp where No. 42 was parked. He located the head of the Northwest inspection crew, told him in detail what he had noticed on the trip to Duluth, and urged that the plane be carefully examined before being allowed to depart on its next trip. Accordingly, the inspectors did make a thorough examination and found that a joint in the right wing of No. 42 was completely broken, and that the wing was being held in place only by its “skin.” It was the same side of the same step of the same joint that had broken in No. 44.

By this time Northwest had learned of the crash of No. 44, and its remaining twenty-three 202 airplanes were immediately grounded and thoroughly inspected. The inspection of these airplanes was made jointly by Northwest and Martin. The wings of the airplanes were all disassembled, and it was discovered that of the four remaining airplanes which had flown in excess of 1,200 hours, all had fatigue cracks in the wing joints, exactly where the wings of 44 and 42 had broken. Of the fifteen airplanes which had flown between 500 and 1,200 hours, seven were found to have fatigue cracks in the same wing joint. Of the four airplanes which had flown less than 500 hours, no such fatigue cracks were found. It is conceded that the broken parts of the wing joints of Nos. 44 and 42 which caused the loss of the first plane- and damage to the second were caused by failures which began and developed as fatigue cracks. It is further conceded that the expected safe service life of the 202 had been between twenty-five and thirty thousand hours. All of Northwest’s 202’s were subsequently rebuilt in two successive phases, and the danger of premature fatigue failures in the wing joints was successfully eliminated.

Northwest then brought this action for damages resulting from the loss of No. 44 and for the loss of use of No. 42 and three other 202’s during the time they were being repaired. It was Northwest’s contention that the fatigue cracks were the direct result of Martin’s negligence in a number of different respects in the design and manufacture of the 202 airplanes.

In order properly to understand this contention, it is necessary to review briefly the evidence as to the cause and nature of fatigue in metal. Fatigue is the phenomenon by virtue of which a metal part will eventually crack and break under repeated loads, each one of which is less than its tensile strength for one load. Three of the factors which affect fatigue life are, first, the kind of metal; second, the amount of repeated load as related to the strength of the metal for one load; and third, the configuration and surface condition of the metal.

It is known that a metal which is smooth and highly polished is less subject to fatigue than one with a rough finish or the surface of which is marred by a scratch or notch. A rough surface is called a “stress raiser.” Abrupt changes of section in the metal are also “stress raisers,” as are notches and bolt holes. It is stress concentration which is the fundamental cause of fatigue failure.

The fatigue life of some metals seems to be much more affected by stress raisers than does that of others. Those metals are said to be “notch sensitive.” The Martin 202 was made from an aluminum alloy called 75ST, which was known to be much more notch sensitive than the alloy 24ST which had been used before 75ST was developed.

It was Northwest’s contention that the wing joints which cracked and broke in Nos. 42 and 44, and which cracked in the other airplanes, had a number of unnecessary stress raisers which were the result of Martin’s negligence in design and manufacture, and that it was these stress raisers which caused the premature fatigue failure at the bottom of the fourth step at the outer end of the front spar of the center wing. Northwest alleged that Martin was negligent in the basic design of the wing joint, in entrusting the design to an incompetent designer, in failing to provide proper fatigue testing of the wing joint, in using aluminum alloy 75 ST where unusual stress raisers were present, in failing to make computations of the secondary or eccentric stresses in the wing joint, in failing to make strain-gauge tests of the wing joint, in violating certain Civil Aeronautics rules, and in making certain misrepresentations to the Civil Aeronautics Administration.

It was the position of Martin that it had used not only ordinary care, but very great care in the design and manufacture of the 202 airplanes. It contended alternatively that if there were a finding that it was negligent, Northwest had assumed the risk of danger or was guilty of contributory negligence.

Beyond what has been said, there seems little point in attempting to review in detail the evidence as to Martin’s negligence. Evidence was adduced on its behalf to show the great care with which the 202 wás designed, manufactured, and tested. Evidence was adduced on behalf of Northwest to show that Martin should have known that the wing joint as designed and manufactured, and in view of the alloy from which it was made, was vulnerable to premature fatigue failure. Martin sought to meet Northwest’s contentions by showing that the phenomenon of fatigue was an elusive and little understood one at the time these airplanes were designed and manufactured, and that in the light of the then state of the art every reasonable precaution was taken to guard against fatigue failure.

On this fundamental aspect of the case it is Northwest’s position on this appeal that the district court should have found that Martin was guilty of negligence as a matter of law. We cannot accept this contention. The effect'of the voluminous evidence was certainly to leave the question of Martin’s lack of ordinary care in a state upon which reasonable minds could differ. Indeed the question appears to us to be an extraordinarily close one. That being so, the trial court was entirely correct in submitting that question to the jury.

Two further contentions of Northwest, however, raise considerably more serious questions. First, it is insisted that the trial court was in error in submitting to the jury the issue as to whether Northwest was barred from recovery because of its assumption of the risk of danger inherent in the defective wing joint in all five airplanes. Second, it is urged that the court was likewise in error in submitting to the jury the issue as to whether Northwest was guilty of contributory negligence with respect to all five airplanes. We shall discuss these contentions in the order presented.

It is Northwest’s position that the evidence of record did not support a submission of the issue of assumption of risk to the jury at all. Northwest also claims that the issue was in any event not correctly stated in the instructions as given by the trial court. If Northwest is correct in its first contention, its second contention need not be considered.

The parties seem to be in agreement that in order to find that Northwest had assumed the risk of danger resulting from the defective wing joint, the jury would be required to find that Northwest had voluntarily, knowingly, and intelligently assumed the risk of that danger, or that the danger was so obvious that Northwest must be taken to have done so. Morris v. Cleveland Hockey Club (1952), 157 Oh St 225, 47 O. O. 147, 105 N. E. (2d), 419; Masters v. New York Central R. Co., (1947), 147 Oh St 293, 34 O. O. 223, 70 N. E. (2d), 898; Knipfer v. Shaw (1933), 210 Wis., 617, 246 N. W., 328, 247 N. W., 320.

The evidence showed that during the period that the original ten 202’s were being built for Northwest a Northwest resident engineer, two or three Northwest inspectors, and a group of Northwest pilots and various other personnel were stationed at the Martin plant. In addition to these Northwest employees who were in residence at the Martin plant as part of Northwest’s so-called “Martin Procurement Project,” a number of other Northwest employees, including officers and technical personnel, made frequent visits to the Martin plant. Their purpose in being there was at least two-fold, first, to familiarize themselves with the characteristics and specifications of the new airplanes, and secondly, to see to it that the airplanes as manufactured conformed not only to Martin’s specifications, but also to Northwest’s standards and operating needs, not only in such major matters as safety, but in various minor respects, such as the design of the interior of the cabins and the location of washroom facilities. Northwest’s agents therefore were in a position to observe and actually did observe the day-by day manufacture of the airplanes. They were in a position to recommend and actually did recommend various changes in design and manufacture.

In the light of these circumstances the district court instructed the jury that it could consider whether or not Northwest had assumed the risk of danger resulting from (a) the basic design of the wing joints, (b) the material used (75ST) in the light of this design, (c) faulty workmanship or manufacture, and (d) the inadequacy of inspections and tests carried out by Martin. The jury was instructed that its finding that Northwest had assumed any of these risks would require a verdict for Martin.

As to Northwest’s assumption of the risk inherent in the alleged faulty design, Martin insists that the court was correct in submitting that question to the jury, particularly in view of the testimony of a witness called by. Northwest who testified that the respects in which the design of the wing joint was dangerous and defective would, after a few minutes examination, be open and obvious to any competent engineer. This witness was a retired employee of the National Bureau of Standards. He was not and never had been an employee of Northwest. His testimony was at variance with the great weight of the evidence which showed that the problem of design from the point of view of fatigue danger was far from completely understood in 1947. However, even accepting this testimony at its face value, there is no evidence that any competent Northwest engineer ever gave the wing joint any such examination. Those portions of the record to which counsel for Martin has directed this court’s attention refer instead to the careful scrutiny that was given by both Martin and Northwest personnel to the design and installation of a wing wedge which was installed to give additional dihedral to the wings, after the initial test flights of the airplane in 1947 had shown it lacked stability. The wing splice was designed in December, 1945, long before Northwest had any connection with the Martin 202. Similarly, references to testimony by Northwest personnel of their knowledge that the metal “skin” of all airplanes might develop cracks lends no support to Martin’s contention that Northwest knew of the dangerous design of the wing splice here involved.

As to Northwest’s alleged assumption of the risk of possible danger in the use of the material 75ST, counsel for Martin calls our attention to evidence that a chemical engineer employed by Northwest had read and was familiar with certain scientific literature indicating that 75ST was an.unusually notch sensitive material. There was no evidence that this witness was connected with the Martin Procurement Project or was familiar in any way with the design of the wing splice, and it was not Northwest’s position that Martin was negligent in the use of 75ST per se, but rather in the use of that material in the wing splice as actually designed and manufactured.

As to Northwest’s alleged assumption of the risk of danger resulting from poor workmanship and inadequate inspection, it is pointed out by Martin that the Northwest representatives present at the Martin plant had ample opportunity to observe and criticize the manufacturing and inspection procedures at all times. Martin emphasizes that, although the Northwest representatives did insist upon changes in other details of the airplane during its manufacture, such as hinge bolts, they made no objection to the workmanship or manufacture of the faulty splice, nor did they request that additional inspection or testing of the wing joint be undertaken, although they had a right to do so. Indeed, the evidence shows that Northwest fully approved the tests as made.

This evidence not only falls short of providing a foundation for inferring assumption of risk, but on the contrary leads to the inference that Northwest did not know of or in any way appreciate a risk of danger in the alleged faulty manufacture and inadequate testing of the wing joint. The evidence that Northwest’s representatives did insist upon changes whenever they saw any reason to be dissatisfied leads to the conclusion, at least by negative implication, that they saw no reason to critize the wing joint. They had no reason whatever not to object to anything they might regard as hazardous, and, in fact, had been expressly instructed by Northwest to insist upon any changes they thought would increase the safety of the airplanes.

In short, we believe that there is a complete absence of any evidence that Northwest, at any time prior to August 29, 1948, had knowledge or appreciation of any risk of danger associated with the design, the material, the workmanship, or the tests of the faulty wing joints in the 202 airplanes. There is no evidence that the danger lurking in the wing joint was so obvious to those Northwest representatives who actually did observe it that they must be taken to have appreciated that danger. We conclude that it was error to submit to the jury the question of Northwest’s assumption of risk in this case.

Northwest makes no objection to the form of the district court’s charge on the question of contributory negligence. It is Northwest’s position, however, that the trial court was in error in submitting the issue of contributory negligence to the jury at all, first, because that issue was not pleaded, and, secondly, because there was no evidence in the record to justify submission of that question to the jury. If Northwest is correct in its second contention, its first contention need not be considered.

Martin concedes that there was no evidence of any negligence on the part of Northwest with respect to the maintenance and handling of the airplanes after they were delivered to Northwest. Martin insists, however, that there was evidence sufficient to submit to the jury of Northwest’s contributory negligence prior to the time the airplanes were completed and delivered. The evidence to which our attention is directed is the same evidence upon which Martin bases its claim of Northwest’s assumption of risk. Martin argues that the difference between assumption of risk and contributory negligence as delineated in the cases is merely one of degree — between risks so obvious they must be taken to have been known to the plaintiff and those slightly less obvious which the plaintiff might have discovered by the exercise of ordinary care. Masters v. New York Central R. Co., Morris v. Cleveland Hockey Club, Knipfer v. Shaw, all cited above.

Specifically, Martin again calls our attention to the fact that many representatives of Northwest were present throughout the period that the airplanes were manufactured and tested, and argues that in the exercise of ordinary care at least one of these representatives should have .seen and appreciated the dangers and hazards in the wing splice.

It is conceded by Martin that “if Northwest had simply relied on Martin to produce a safe and sound airplane and had no further interest in the matter, there would be no issue here of contributory negligence.” That in any event seems to be the law. One need not anticipate the negligence of another until he becomes aware of such negligence. Baldridge v. Wright Gas Co., Inc. (1951), 154 Oh St 452, 43 O. O. 369, 96 N. E. (2d), 300 (Syl. 1). It is not contributory negligence to fail to look out for danger when there is no reason to apprehend any. Standard Oil Co. v. Burleson, (5 Cir., 1941), 117 F. (2d), 412, 414; Phillips Petroleum Co. v. Hooper (5 Cir., 1948), 164 F. (2d), 743; S. E. Kresge v. Holland, (6 Cir., 1946), 158 F. (2d), 495, 498, 34 O. O. 464. One to whom a duty is owed has a right to assume that it will be performed. He is not required to anticipate negligent acts or omissions on the part of others. American Stores Co. v. Murray (3 Cir., 1937), 87 Fed. (2d), 894; Powell Bros. Truck Lines, Inc. v. Piatt (10 Cir., 1937), 92 F. (2d), 879, 880; Phillips Petroleum Co. v. Miller (8 Cir., 1936), 84 Fed. (2d) 148, 153, 155; E. I. DuPont deNemours & Co. v. Frechette (8 Cir., 1947), 161 F. (2d), 318, 323.

While thus conceding that Northwest was under no duty to make a detailed inspection of the airplanes, Martin argues that since Northwest did in fact undertake an independent inspection, it was guilty of contributory negligence in accepting and putting the planes into use if dangers or defects existed in the wing splice which could have been discovered by the exercise of ordinary care. Martin refers us to no authority for this proposition.

In the light of the undisputed facts of this case, we are unable to accept Martin’s contention. The evidence clearly showed that the damage was caused by fatigue cracks in the wing joints of the airplanes. There was no evidence whatever that any action of Northwest caused or contributed to cause those fatigue cracks. Northwest did not participate in any way in the design of the critical wing joint, nor in deciding upon its specifications. Northwest had no knowledge of any defect in the design. The evidence was clear that Northwest relied on the manufacturer for the elements of basic safety of the airplane, and there was no suggestion in the evidence that Northwest had any reason to doubt Martin’s competence and skill as a designer and manufacturer of airplanes.

There was no evidence that Martin took any action or refrained from taking any action in the design, manufacturing or testing of the critical wing splice in reliance upon Northwest’s inspection. Where one undertakes an act which he has no duty to perform, and another reasonably relies upon that undertaking, the act must generally be performed with ordinary care. See Conowingo Power Co. v. State of Maryland (4 Cir., 1941), 120 F. (2d), 870, 874. Cf. Restatement of Law of Torts, §325. That, however, is not this case. There was no evidence that Martin relied in any way upon the inspections made by Northwest, with respect to the airplanes generally or the wing joint in particular. That being so, we fail to see how the inspections which were made by Northwest contributed in any way to the damages it sustained.

A negligent defendant is exculpated from liability to a plaintiff who has increased the risk of harm to himself over what the risk would have been had he exercised ordinary care. Here it is conceded that in the exercise of ordinary care Northwest need not have made any inspection of the airplanes at all. If Northwest had made no inspections, it is obvious that the risk of danger in the wing joints would have been no greater and no less than it actually turned out to be. The fact that inspections were made in no way increased the risk of harm. Northwest must not be penalized for attempting in its own interest to conform to a higher standard of care than that imposed upon it by the law.

The realities of the situation support the conclusion we have reached. The evidence showed that the Martin 202 was an assembly of approximately 75,000 separate parts. Some 17,000 separate drawings were made in connection with its design and manufacture. More than five hundred Martin designing engineers were engaged on the 202 project in 1946, approximately a hundred of them on the wing alone. Over 2,000,000 man hours were expended on the design of the 202. By contrast, Northwest had never more than three and for most of the time only two inspectors present at the Martin plant. None of them was an aeronautical engineer. In addition, one engineer from Northwest was stationed at Martin’s plant. The evidence is clear that the primary concern of these Northwest representatives was with those obvious aspects of the design and manufacture of the airplane affecting Northwest’s operational and maintenance procedures. With respect to elements of primary structure and basic safety Northwest relied in full upon Martin, as in the exercise of ordinary care it was entitled to do. In view of the complexity and magnitude of the project, Northwest was obviously quite helpless to do anything else.

As we have said, the evidence of Martin’s negligence in the design, manufacture and testing of the 202 presented an extraordinarily close question. The question of whether or not it departed from a standard of ordinary care had, of course, to be resolved by measuring its conduct against the standard of what an ordinarily prudent designer and manufacturer of airplanes would have done. Northwest, on the other hand, was the operator of an airline. The record contains no evidence that it was guilty of any departure from the standard of care of an ordinarily prudent airline operator. See Restatement of Law of Torts, §289. We conclude that the district court was in error in submitting to the jury the issue of Northwest’s contributory negligence based upon its inspection of the five airplanes.

With respect to No. 44, the airplane lost in flight, Martin’s answer averred that Northwest had been guilty of contributory negligence in causing the plane to be flown into a storm, in failing to promulgate and follow proper flying practices, in failing to reduce the speed of the plane while in the storm, and in failing to give the pilot proper weather information. Evidence was adduced in support of these allegations, creating a jury question as to whether or not Northwest had been guilty of contributory negligence in the respects charged, and whether or not such contributory negligence had been a cause of the plane’s loss. The trial court submitted this issue to the jury with clarity and completeness, correctly instructing them as to the applicable Wisconsin law of comparative negligence (see §331.045, Wisconsin Statutes 1951).

Martin’s answer also alleged that Northwest had been guilty of contributory negligence in failing to equip No. 44 with proper and adequate radar equipment “so as to enable it to be navigated around and avoid the violent storm area.” Over Northwest’s objection the trial court submitted to the jury the question of whether the failure to install airborne radar constituted negligence contributing to cause the loss of No. 44. Northwest assigns as error the submission of the radar issue to the jury, insisting that there was no evidence to support it.

The evidence showed that neither Northwest nor any other American airline had airborne radar in operational use in August, 1948, when No. 44 was lost. Early in 1948 Northwest had conducted a study lasting several months as to the feasibility of using airborne radar' on its commercial flights. The purpose of the study had been to determine the advantage and ulitity of airborne radar in (1) terrain collision avoidance; (2) avoidance of inter-flight collision with other aircraft; (3) avoidance of high turbulence or high precipitation areas. As a result of the study, Northwest had concluded that the radar then commercially available was not feasible in performing these functions for the reasons that (1) while trustworthy in about 95% of the cases, it was likely to be dangerously misleading in the remaining 5%; (2) the screen illumination was so low as to make the equipment useless in daytime; (3) complete “historical attention” on the part of the viewer was required, that is, the radar echo at any one moment would be unintelligible to one who had not given the screen complete attention for at least the preceding five minutes.

On the other hand, there was evidence that prior to the time of No. 44’s loss, airborne radar had been used successfully in military planes. There was also evidence that airborne radar had been used in a United States Government experimental project known as “The Thunderstorm Project,” carried out in 1946 and 1947 by the Air Force, Navy, National Advisory Committee for Aeronautics, and the Weather Bureau, for the purpose of obtaining information concerning the internal structure and behavior of thunderstorms in the interest of safety in flying.

The report of this project, published under the title, “The Thunderstorm,” was admitted in evidence. That document contained the following two statements among others: “With a radar equipped aircraft an appreciable reduction in gust experience can be achieved by circumnavigation of radar echoes caused by thunderstorms. * * * If his plane is equipped with a radar set having reasonably long range and plan-position indicators, the pilot may observe the structure of the squall line while still many miles away and take action to plan his penetration or circumnavigation with a minimum loss of time.”

We are in complete agreement with Martin’s statement that “whether the governing law be that of Wisconsin, Ohio, or the Federal Courts,” the fact that Northwest conformed to the practice of other airlines in failing to equip No. 44 with radar did not establish its exercise of ordinary care as a matter of law. Customary practice is not ordinary care; it is but evidence of ordinary care. E. L. Chester Co. v. Wisconsin Power & Light Co., (1933), 211 Wis., 158, 247 N. W., 861; Sprecher v. Roberts (1933), 212 Wis., 69, 248 N. W., 795; Ault v. Hall (1928), 119 Oh St 422, 164 N. E., 518, 60 A. L. R., 128; Texas & Pacific R. Co. v. Behymer (1903), 189 U. S., 468, 23 S. Ct., 622, 47 L. Ed., 905.

The difficulty we encounter, however, is occasioned by our failure to find in the record any evidence that satisfactory airborne radar equipment was commercially available in August, 1948. Three expert witnesses testified on the question of airborne radar, two on behalf of Northwest and one on behalf of Martin. Their uncontradicted testimony was that the airborne radar commercially available in August, 1948, was unreliable and unsatisfactory. Martin’s witness testified that “There were no satisfactory radars available for commercial use” in the summer of 1948.

While the two above-quoted excerpts from “The Thunderstorm” might at first blush seem to imply otherwise, we have found nothing in that publication to indicate that satisfactory airborne radar was then commercially available. Indeed the document contains statements indicating such radar was not then available. For example: “At the present time a practical way is not available for a pilot approaching a thunderstorm to determine, or be informed of, the number and location of the cells in it and their varying stages of development. * * * Thus there is reason to believe that further development of radar equipment will enable the pilot to make use of it for selecting a flight path through the cloudy air between the cells of a storm, where hazardous conditions will be at minimum.”

This issue of airborne radar involved only one of many aspects of Northwest’s alleged contributory negligence with respect to the loss of No. 44. It played a prominent part, however, in argument to the jury, and its discussion occupies a substantial portion of the briefs on appeal. 'We need not seek the reason. The very word “radar” is enough to capture the imagination with its much-publicized marvels. Yet in August, 1948, there was no evidence that feasible airborne radar was commercially available to operators of airlines.

On the basis of the evidence of record, we conclude that there was prejudicial error in submitting this question to the jury.

Northwest complains of the district court’s limitation and rejection of certain evidence offered by it and of the court’s admission of certain evidence offered by Martin.

Purportedly to show the state of the art prior to the manufacture of the 202’s Martin was permitted to offer in evidence a number of Civil Aeronautics Administration directives dealing with various and sundry defects which experience had disclosed in different types of airplanes. While we agree with Northwest that the directives had little relevance, we think there was no abuse of discretion in admitting them.

We believe too that the district court was correct in refusing to permit Northwest to use the evidence of the modifications in the wing joint, made by Martin after the damage was discovered, to show what Martin should have done in the first place. Northwest argues that its purpose was simply to show what Martin could have done in the original design and manufacture of the wing joint, but the result would have been to provide a basis for inferring what should have been done. This kind of hindsight evidence is not properly admissible upon the issue of ordinary care. Columbia & P. S. Railroad Co. v. Hawthorne (1892), 144 U. S., 202, 12 S. Ct., 591, 36 L. Ed., 405. Similarly, the court was correct in excluding a report of certain experiments conducted by The Aluminum Company of America Research Laboratory, after the faulty wing joint was discovered. Northwest contends that this report should have been admitted in rebuttal to show the relative merits of various types of wing splice design. In view, however, of the voluminous evidence of record showing the complicated interplay of stresses in a wing structure, the Aluminum Company experiments with isolated joints were of doubtful probative value. The report of the experiments was involved, and the trial court did not abuse its discretion in ruling that the danger of the report’s confusing the jury outweighed its materiality and relevance. See 2 Wigmore, Evidence (3rd Ed., 1940), Section 444.

During the trial the district judge was faced with the decision of many complicated evidentiary questions. His rulings were conscientious and consistently fair. Indeed, in his entire conduct of this case during the many tedious weeks of trial, he manifested professional competence of an extremely high order. It is accordingly with great regret that we have reached the conclusions indicated in this opinion with respect to fundamental aspects of the court’s instructions to the jury.

For the reasons pointed out in this opinion, the judgment is reversed and the case remanded to the district court for a new trial.

DISSENTING OPINION

By McALLISTER, Circuit Judge.

In the prevailing opinion, Judge Stwart has most carefully and comprehensively analyzed the several thousand pages of the record in this complicated case, and the extensive briefs, with the result that the vast body of the evidence, including the technical testimony of engineering experts, has been simplified, and the issues clearly presented. I differ only in the conclusion as to the questions of assumption of risk and contributory negligence which I feel were properly submitted to the jury. It was appellants’ witness who testified that the wing splice design was not a safe and suitable design; that it was dangerous and defective; and that the dangers were not such as to require great and discriminating knowledge to understand, but were so open and obvious to any competent engineer that they might be perceived at first blush. While this was the only evidence to such effect, it would seem that appellee Martin Company was entitled to protect itself against the contingency that the jury might believe it by asking the court to charge on assumption of risk; and that the district court properly submitted the question to the jury. As to the issue of contributory negligence, while the evidence was not extensive or convincing, there was, in my opinion, some evidence that radar equipment was available; that appellant Northwest Airlines had experimented with it in its planes, in studies to determine the advantage .of using it to avoid high turbulence areas; and that it would have been of assistance in circumnavigating a thunderstorm area. There was also evidence that while radar would have given an accurate picture of the turbulence 95% of the time, it would have been inaccurate and dangerous 5% of the time; that the screen illumination was so low as to make the equipment useless in the daytime; and that continuous attention by the viewer of the radar was necessary. In the light of all of the evidence— much of it, confessedly, lacking the certain and specific quality that would remove doubts as to whether the question of contributory negligence was in the case — it yet seems to me that the district court properly submitted to the jury the question whether, in the exercise of due care, Northwest Airlines should have installed radar as an aid to thunderstorm flying. I would, therefore, affirm the judgment of the district court.

      . Certain insurance company subrogees were later joined as plaintiffs;

      . The jury returned four separate verdicts, covering (a) claim for damages due to the destruction of one plane; (b) the claim for reimbursement for Workmen’s Compensation payments made by reason of the death of the members of the crew of that plane; (c) the claim for damages for loss of use of the other four airplanes prior to March 25, 1949; (d) the claim for damages for loss of use of those airplanes after April 14, 1949.

      . We are not here considering the question of Northwest’s alleged contributory negligence with respect to the operation of No. 44, in flying it into a thunderstorm. Certain aspects of that issue are discussed later in this opinion.

      . There is no discussion in the lengthy briefs of the possibility of a conflict of laws problem in this case, it apparently being agreed that the law of the forum (Ohio) applies, except with respect to No. 44, which crashed in Wisconsin. However, on the question of a duty to inspect, the law of the state where the airplanes were manufactured and delivered (Maryland) and of the state where the damage was discovered (Minnesota) seems in any event to be the same as that of Ohio. Klein v. Dougherty (1952), 200 Md. 22, 26, 87 A. (2d), 821, 825; Mahowald v. Beckrich (1942), 212 Minn., 78, 2 N. W. (2d), 569, 571.


author: Per CURIAM:

text:
    NORTH BRITISH AND MERCANTILE INSURANCE COMPANY, Plaintiff-Appellee, v. MARKOVICH, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23342.
    Decided May 10, 1955.

      Payne & Herman, Cleveland, for plaintiff-appellee.
    Hyland & Hyland, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

This suit in equity by the plaintiff-appellee insurance company to rescind and avoid a policy of insurance upon a Buick automobile that was issued to the defendant-appellant, Steve Markovich, is here appealed on questions of law from a judgment in favor of the plaintiff-appellee by the Court of Common Pleas.

Defendant procured title to the Buick in 1949, and had renewed annually the insurance he took out at that time with the plaintiff company until the Buick was reported stolen in 1952.

After the “proof of loss” on the stolen Buick had been filled out and sent to the insurance company, the company apparently decided that the defendant had materially misrepresented facts in his application for insurance and instituted this suit for rescission of the policy. The claim of the insurance company in the main is that ownership of the Buick was not in the defendant, the title holder, but his brother, and that while the defendant had stated in his application that the Buick was to be garaged principally in Cleveland, it was usually garaged in Mansfield, Ohio, at the home of the defendant’s brother.

In support of both of these claims the plaintiff relied solely upon the testimony of the defendant title holder and his brother Peter. While there is some conflict in their testimony as to whether the car was a gift or paid for by the defendant title holder, there is no question as to the fact that the defendant holds the certificate of title which, under Ohio law, is conclusive evidence of ownership, and defendant has held the same since 1949. It was not until June 17, 1952, that the automobile was reported stolen from a garage in Cleveland, Ohio.

In an action for rescission on the ground of fraud, the evidence substantiating the claim must be clear and convincing. We have examined the record thoroughly and have reached the conclusion that the evidence not only is not clear and convincing but is insufficient to show fraud even by a preponderance of the evidence. It is our view that the Court erred in not granting defendant-appellant’s motion for judgment at the close of plaintiff-appellee’s evidence and that the judgment of the trial court is not based on sufficient evidence. This conclusion is in accord with the oral opinion of the trial court at the close of the hearing when he declared, as appears at one P. 133 of the Bill of Exceptions as follows:

“The purpose of insurance is to insure. That’s what they insured this for. The Court feels it should leave these parties to their legal remedies. They have a plain legal remedy in Municipal Court. They should seek their remedy over there. The Court sees no reason why it should void this policy at this time. The Court sees no reason why it should do that.” (Emphasis supplied.)

The reference by the trial court to a legal remedy in Municipal Court is explained in the opening statements of counsel, wherein it is agreed that there was at the time of the trial of the instant case a pending suit in the Municipal Court wherein the claim for loss of the automobile because of .theft was at issue.

It was some time after submission of the case and the statement of the Court above referred to that judgment was entered for the plaintiff-appellee instead of the defendant-appellant. It is our conclusion that the judgment of the trial court is contrary to law and that this court should proceed to enter the judgment for the defendant-appellant which the trial court should have entered. Accordingly the judgment is reversed and final judgment entered for defendant-appellant. Exceptions allowed. Order see Journal.

KOVACHY, PJ, SKEEL, J, HURD, J, concur.