author: By WISEMAN, J. By THE COURT. By THE COURT.

text:
    FOLDEN, Plaintiff-Appellee, v. WOLF, Admr. et, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 4569.
    Decided June 4, 1951.

      Herbert & Dombey, Columbus, for appellee.
    Paul R. Gingher, Columbus, for appellants.
   OPINION

By WISEMAN, J.

This is an appeal upon questions of law from the judgment of the Municipal Court of Columbus.

Plaintiff recovered a judgment in the amount of $404.55 against the estate of Sollie Gay, deceased, as damages to plaintiff’s automobile caused by the negligence of Sollie Gay in the operation of an automobile owned by the Haverfleld Company, which was owned and conducted by Ralph Haverfleld. This judgment was not paid. Subsequently plaintiff filed her supplemental petition under the provisions of §9510-4 GC, against the State Automobile Mutual Insurance Company, alleging that prior to and at the time of the collision there was in full force and effect an automobile insurance policy issued by defendant insurance company covering the operation of the automobile driven by Sollie Gay, by the terms of which said insurance company insured Sollie Gay in the operation of said automobile.

The cause was tried to a jury. At the close of all the testimony counsel for the insurance company moved for judgment and for a directed verdict, which motion was overruled. The jury rendered a verdict for the plaintiff in the amount of $404.55 and judgment was entered on the verdict. Defendant’s motion for new trial was overruled.

The notice of appeal is directed to a judgment rendered on January 30, 1951, which was the date of the filing of the entry overruling motion for new trial. The judgment on the verdict was journalized November 21, 1950. There being only one judgment rendered from which an appeal could be taken, the designation of the incorrect date is not fatal to the appeal. Great liberality is extended to the appellant in amending the notice of appeal to conform to the facts of record. Mosey v. Hiestand, 138 Oh St 249. The notice of appeal may be amended at bar by striking out the date of January 30, 1951 and inserting November 21, 1950.

The only error assigned by defendant-appellant is that the Court erred in overruling defendant’s motion for judgment and for a directed verdict.- A motion for a directed verdict admits all uncontroverted facts or undisputed evidence on the essential issues in the case and presents only a question of law for the Court as to whether the essential issues have been supported by sufficient evidence to warrant a submission of the case to the jury. 39 O. Jur. 791. In ruling on the motion for directed verdict the Court is required to construe the evidence most strongly in favor of the party against whom the motion is directed. Vol. 39 O. Jur. 794.

The defendant contends that the undisputed evidence in the case, as a matter of law, is insufficient to sustain the plaintiff’s cause of action on the principal and essential issue, to wit: Was Sollie Gay at the time of the collision operating the Packard automobile by permission of the insured?

The insurance policy contained the usual provision that the word “insured” includes “any persons while using the automobile and any person or organization regularly responsible for the use thereof, provided the actual use of the automobile is with the permission of the named insured.” (Emphasis ours.)

Was Sollie Gay operating the Packard automobile at the time of the collision with the permission of the insured? In brief the evidence, which is uncontradicted, shows that Sollie Gay was employed by Ralph Haverfield as chauffeur; that on the date of the accident the Haverfields were at Hot Springs, Virginia; that Gay was authorized to use the automobile under the personal direction of the Haverfields; that he was authorized to use it in driving from the Haverfield residence to his residence and return, and to and from the filling station; that the maid in the Haverfield home could send him on errands for the household and to pick up mail addressed to the maid at her former residence. Gay was not authorized to use the automobile for his own pleasure, on errands of his own, or in transporting relatives from one place to another. The evidence is undisputed that at the time of the collision Gay was operating the automobile for the purpose of transporting his niece from the Haverfield residence (where he had taken his. niece and where she spent several hours prior to the collision) to her place of employment. The evidence showed no other purpose for the trip; and there is no evidence from which a reasonable inference may be drawn that at the time of the collision he was operating the automobile on a mission for which permission had been granted.

The evidence clearly shows that Gay was operating the automobile at the time of the collision on a mission of his own and in disobedience to instructions. The facts show a complete departure from that for which permission was granted.

Decided September 11, 1951.

The plaintiff contends that from the mere fact that Gay was operating the automobile owned by the insured, a reasonable inference may be drawn that the operation was by permission of the insured, and that a factual issue was presented which should be submitted to the jury. Such inference may be drawn in the absence of explanatory evidence. Where such inference is completely refuted by clear, positive and conclusive testimony to the effect that the automobile was being operated without permission an inference to the contrary to such evidence may not be drawn. In our opinion reasonable minds might not reasonably reach different conclusions on this issue. That the evidence is insufficient, as a matter of law, to sustain the plaintiff’s case is supported by Gulla v. Reynolds, 151 Oh St 147, 85 N. E. (2d) 116; Kazden v. Stein, 118 Oh St 217, 160 N. E. 704; Baily v. Weaver, 67 Oh Ap 259, 35 N. E. (2d) 1006; Arthurs v. Citizens’ Coal Co., 37 Abs 438, 47 N. E. (2d) 654. In this case, as in Gulla v. Reynolds, the policy provided that permission must be shown to have been given for “actual use” of the automobile. See also the unreported case of Senn v. Lackner, 59 Abs 449, decided by this Court on January 17, 1951, and on application for rehearing on March 8, 1951, Montgomery County, No. 2125. In that case it was strongly urged that the evidence as to the purpose of the trip was not strong enough to overcome, as a matter of law, the inference of agency which would ordinarily arise from the fact of ownership of the automobile. The Court discusses at iength this question, citing a number of Ohio cases and cases in other jurisdictions, and concluding that an inference cannot prevail against clear and undisputed testimony on the subject.

In our opinion the trial court should have sustained defendant’s motion for a directed verdict and judgment. In overruling the motion the court committed prejudicial error. In such cases the reviewing court may enter the proper judgment. Accordingly, judgment is entered for defendant.

HORNBECK, PJ, MILLER, J, concur.

ON APPLICATION FOR REHEARING

No. 4569.

OPINION

By THE COURT.

Application for rehearing is hereby denied.

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

Decided May 14, 1952.

ON MOTION TO CERTIFY JUDGMENT

No. 4569.

OPINION

By THE COURT.

Submitted on motion to certify on the ground that the judgment rendered in this case is in conflict with the judgments rendered in Rosenberg v. Reynolds, 11 Oh Ap 66, and Fredericks v. B. L. Williams Co., 68 Oh Ap 217.

Motion to certify is hereby overruled.

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


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. MINNIEAR, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 157.
    Decided December 8, 1951.
    Blake & Lewis, Sidney, for plaintiff-appellee.
    Cummins & Boiler, Sidney, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to dismiss the appeal for failure to file briefs and assignments of error within the prescribed time. The record shows that the defendant was sentenced on May 9, 1951. Nothing has been filed in the Court of Appeals except a transcript of the docket and journal entries. No notice of appeal, assignments of error or briefs have been filed. The Court did not acquire jurisdiction in the absence of a notice of appeal. Motion to dismiss will be sustained.

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


author: By CARPENTER, J.

text:
    BILLMAN v. SOSBE et.
    Ohio Appeals, Sixth District, Lucas County.
    Decided November 29, 1948.
    Harry B. Kirtland, Toledo, for appellant.
    Rupp & Hahn, Toledo, for appellees.
   OPINION

By CARPENTER, J.

The record in this case presents an interesting procedural question. Although it is not raised by the parties, the court can not escape answering it because it relates to the jurisdiction of this court over this appeal.

This cause had its origin as an action in forcible entry and detainer in the court of a justice of the peace. The judgment was for the plaintiff and the defendant appealed to the court of common pleas on questions of law. A bill of exceptions was allowed by the Justice and filed with the original papers in common pleas. March 23, 1948, the appeal was submitted to that court on the record, including the bill of exceptions. The judgment of the Justice was reversed and final judgment entered for the defendant.

March 27, 1948, the plaintiff filed a motion for a new trial. April 13, 1948, that motion was overruled and notice of appeal to this court was filed April 21, 1948. This was 29 days after the judgment was entered and 8 days after the order overruling the motion for a new trial.

The question: Did the filing of a motion for a new trial in this, an error proceeding, toll the running of the time in which to file the notice of appeal? If not, the notice, having been filed more than 20 days after the judgment, was too late, and the appeal must be dismissed. Sec. 12223-7 GC.

The answer to this question, raises another: What is a new trial?

It is defined in §11575 GC. Before the amendment of that section in 1945, 121 O. L. 366, there could be no doubt about the meaning of the term “New Trial.” It was defined:

“A new trial is a re-examination, in the same court, of an issue of fact, after a verdict by a jury,” etc.

Expressly, that was a re-examination of an issue of fact. That could only be in the trial court, it could not be in a reviewing court.

The amended section, which applies here, says:

“A new trial is a re-examination, in the same court, of the issues, after a final order, judgment or decree by the court.”

This language, standing alone, might be applied to a judgment in an error proceeding. However, §11576 GC, stating for what causes a new trial may be granted, clears the meaning of §11575 GC. It was amended in the 1945 Act. It provides:

“A final order, judgment or decree, shall be vacated, and a new trial granted by the trial court on the application of a party aggrieved, for any of the following causes * *

This contemplates a new trial in “the trial court” and excludes it as possible procedure in an appellate court. In this respect it was the same before the amendment. Prom the very nature of an error proceeding, there is no trial in it. The rights of the parties are determined by the appellate court solely on the record made in the trial court. No new facts or evidence can enter into the consideration of that court. At most, there can only be a hearing or discussion of the legal questions presented by that record. It is the same as the disposition of a cause on a demurrer to a pleading, as happened in State ex rel. Longman v. Welsh, 133 Oh St 244, 13 N. E. 2d 119. There a similar motion to the one at bar was filed, and a like appeal attempted.

As the court of common pleas could not entertain a motion for a new trial directed to its judgment, the filing of such motion was a nullity, and could not toll the time for the filing of a notice of appeal. As this notice was filed more than 20 days after the judgment, March 23rd, it was too late to give this court jurisdiction and the court, sua sponte, must dismiss the appeal.

Appeal dismissed.

CONN, PJ, FESS, J, concur.


author: By McLAIN, J.

text:
    BRADY, Police Officer, In re.
    Common Pleas Court, Trumbull County.
    No. 62066.
    Decided January 8, 1953.

      G. Howard Lafferty, City Solicitor, Frederick H. Loomis, Jr., Asst. City Solicitors, Warren, for City of Warren.
    D. J. Lapolla, Samuel Petkovich, Warren, for Charles D. Brady.
   OPINION

By McLAIN, J.

This is an appeal on questions of law and fact from the order and judgment of the Director of Public Service and Safety and the Civil Service Commission of Warren, Ohio, discharging Charles D. Brady as a patrolman and member of the Department of Police for intoxication while on duty and in uniform.

It is urged by reason of the fact that Section 1, Article 1, of the Warren, Ohio police manual states that a police officer may be suspended for intoxication while on duty, the order discharging the patrolman was illegal.

While the city of Warren has the right to prescribe general rules for the police department, no rule so adopted could be effective in curtailing the power of the appointing authority to remove a member of the classified service for any of the causes set forth in §486-17A GC (§143.27 R. C.).

This section of the state law provides, in substance, that the tenure of every officer in the classified service of the city shall be during good behavior and efficient service, and any such officer may be removed for incompetency, inefficiency or drunkenness.

Every member of the classified service is charged with a knowledge of this section, and the director may either suspend or discharge in the exercise of his discretion. The decision is then subject to review by the Civil Service Commission which has the right to affirm, modify, or reverse the action of the director.

This court, however, has no right to modify the decision of the director and the Civil Service Commission. Its jurisdiction is limited to the ascertainment of one question only, namely, whether there was sufficient cause for removal. Hawkins v. City of Steubenville, 134 Oh St, 468, 13 O. O. 48. The sole question, therefore, to be determined by the court is whether or not officer Brady was intoxicated within the contemplation of §486-17A GC (§143.27 R. C.).

There are degrees of intoxication varying all the way from slight stimulation to complete coma. The evidence in this case does not establish the fact that officer Brady was intoxicated to a great degree or that he was in a state of stupor or staggering about.

However, it is the opinion of the court that intoxication as used in §486-17A GC (§143.27 R. C.), does not necessarily mean that an officer must be so drunk that he is unable to walk or that he should have been guilty of excessive drinking. It is more reasonable to assume that the legislature intended that those engaged in the protection of the public shall remain free from any degree of intoxication, the existence of which would prevent him from exercising normal control of his bodily and mental faculties. It is sufficient if his senses are obviously impaired or distracted by the use of intoxicating liquors.

It is essential to the general security that a police officer be in full possession of his faculties and if, by reason of the use of intoxicants, he does not possess that clearness of intellect and control of himself that he otherwise would have, he is intoxicated.

Captain Heinlein testified that officer Brady was drunk; that he was in no condition to work; that he was not able to walk exactly right; that the pupils of his eyes looked bad, and that he could smell the ordor of liquor on him very strong.

Officer Lubert, although he didn’t testify that Brady was drunk, did say that his eyes were glassy and he was talkative. He also confirmed Captain Heinlein in the fact that he took longer than usual to search out a prisoner.

In addition to this testimony, several other important circumstances were established. Officer Brady himself testified that he had two drinks of liquor earlier in the day. The record further shows that he was in a local bar while on duty, although there is no testimony that he drank therein. The record further shows that he failed to answer a police light which was put on at 6:05 until 6:40.

In view of the foregoing facts, the court finds that the evidence does establish the sufficiency of the eause of removal.

It is, therefore, ordered, adjudged and decreed that the decision of the Civil Service Commission of the city of Warren upholding the order of removal made by the director be and the same is hereby affirmed, and the appeal dismissed at appellant’s costs.


text:
    BAYNES d. b. a. BAYNES CONSTRUCTION CO., Plaintiffs-Appellees, v. McKEE, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2134.
    Decided April 9, 1951.
    Karas & O’Hara, Dayton, for plaintiffs-appellees.
    T. L. Barger, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on law from the judgment of the Common Pleas Court of Montgomery County. The plaintiffs brought an action to recover money alleged to be due them from thé defendant on an oral contract whereby the plaintiffs agreed to furnish all the labor and equipment necessary to level off and clear of trees and underbrush certain lands belonging to the defendant. There is no dispute between the parties with respect to the terms of the oral agreement. There is a definite conflict in the evidence with respect to the question whether the plaintiffs substantially performed the contract. The plaintiffs contend that they did substantially perform the contract and that there was due them a certain sum of money which they sought to recover and that they had perfected a mechanic’s lien on the lands which they sought to foreclose.

The defendant denied substantial performance of the contract and claimed damages on the ground that the plaintiffs had failed to perform the contract.

The court rendered judgment in favor of the plaintiff for the balance due on the contract, holding that the plaintiffs had substantially complied with its terms, and ordered the foreclosure of the mechanic’s lien. The court also dismissed the answer and cross petition of the defendant.

The evidence presented by the plaintiff showed a substantial compliance. The evidence presented by the defendant strongly supported the defendant’s claim that the plaintiff had not completed the work under the terms of the contract. Here was a definite conflict in the evidence and the trial court was required to judge as to the credibility of the witnesses. Apparently the trial court accepted the evidence presented by the plaintiff which amply supported the judgment. The matter of judging the credibility of the witnesses is solely the province of the trial court and not a reviewing court. Consequently, we cannot disturb the judgment on the ground that it is contrary to the weight of the evidence.

In our opinion the nailing on a post at the farm of a copy of the affidavit filed for a mechanic’s lien was a sufficient compliance with the provisions of §8315 GC.

The appellant contends that the court erred in allowing the plaintiffs to amend the prayer of the first amended petition after trial by including interest on the amount claimed. The first amended petition sets forth in the body of the petition a claim for interest from June 25, 1947. The praecipe and the summons both' show that interest was claimed from June 25, 1947. In our opinion the amendment was permitted under §11363 GC, which provides for amendments before or after judgment in furtherance of justice. This amendment did not change the cause of action as appellant contends. The appellant is not in a position to contend that she was taken by surprise or that the interest was not due. In our opinion the action of the court in amending the prayer to include the interest which was set forth in the body of the petition, together with the praecipe and the summons, did not violate §11305 GC.

We find no assignment of error well made.

Judgment affirmed.

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


author: Per CURIAM.

text:
    MEADOWBROOK HOMES, INC., an Ohio Corporation, Plaintiff, v. INTERNATIONAL HOD CARRIERS AND BUILDING LABORERS UNION OF AMERICA, etc., Defendants.
    Common Pleas Court, Hamilton County.
    No. 139235.
    Decided September 4, 1953.
    Robert T. Keeler, Nelson Schwab, Jr., Joseph H. Head, Cincinnati, for plaintiff.
    Benjamin Gettler, Jonas B. Katz, Cincinnati, for International Hod Carriers, International Teamsters, John Travis, George Starling and James Webb, defendants.
    William R. Matthews, Cincinnati, for Cement Finishers and J. E. Hines, defendants.
    Harold R. Latimer, Cincinnati, for Building Trades Council and Frank C. Vincent, defendants.
   OPINION

Per CURIAM.

This matter is before the court on the application for a temporary restraining order.

The plaintiff, Meadowbrook Homes, Inc. is a corporation, and the defendants The International Hod Carriers and Building Laborers Union of America Local 265, Cement Finishers Union Local 524, International Teamsters, Truck Drivers, Chauffeurs and Helpers Union of North America Local 100 and the Cincinnati Building Trades Council are unincorporated associations, the first three mentioned defendants being trade unions and the fourth an association of trade unions; John Travis, James E. Hines and George Starling, who are the business agents and representatives respectively of the three unincorporated associations known as labor unions; James Webb, and Frank C. Vincent the secretary of the Building Trades Council.

In this case the plaintiff claims, and the evidence shows, that it is a corporation organized under the laws of the state of Ohio, and that it is engaged in a project of building homes in the city of Cincinnati, county of Hamilton and state of Ohio. It is asserted that the defendants, individually and collectively as members of trade unions, have caused the bannering of the plaintiff’s project and have caused a work stoppage on the project.

The defendants claim first that the plaintiff is not a bona fide entity, and second that a man named Collins is a subcontractor on plaintiff’s project, and that the grievance is in reality between these unions and Collins. The defendants do not claim that they have any grievance against Meadowbrook Homes, Inc.

At the hearing the defendants introduced some evidence that this picketing was being done against Collins, and not against Meadowbrook Homes, Inc. The most persuasive bit of evidence on that subject is the wording of the banners themselves. This wording is set forth in the petition, and during the course of the evidence the defendants were asked whether or not the language in the petition correctly set forth the wording of those banners, and it was admitted in open court that they did. One of the banners stated: “Cement masons employed on this project are not members of the Cement Masons Union Local 524 AFL”; another banner stated: “Does not employ members of Truck Drivers Union Local 100 AFL.” A third banner stated: “Men working on this job are not members of the International Hod Carriers and Building Laborers Union Local 265 AFL.” Those banners show conclusively, in the opinion of the court, that this picketing was not directed against Collins alone, but was intended to accomplish the exact purpose it did accomplish, and that was to cause a work stoppage on this entire project.

The question involved here is not new in this state. The Supreme Court of Ohio has spoken on the subject on a number of occasions; and when the Supreme Court speaks on a subject the decisions of courts lower in rank than the Supreme Court are not persuasive.

In this class of cases there are always a number of Constitutional questions involved — Constitutional rights — and in this case there are several such rights involved. The Constitutional right of free speech is involved: the Constitutional right of men to work whether they do or do not belong to trade unions is involved: the right of an employer to employ men who do not belong to unions as well as those'who do belong to unions, all of one kind or the other is involved.

This is not a labor dispute under the Taft-Hartley Act. The court is fully persuaded that the Taft-Hartley Act was not an exclusive remedy in a case of this nature. True, the plaintiff would have a right to base its action upon the TaftHartley Act, but would also have a right to base its action, as it did here, under the law of the state in which the case arose. If a case is based on the Taft-Hartley Act then the question of whether the federal courts have exclusive jurisdiction is always before the court; but where a case is based upon state law as is here done, there is no question in the court’s mind that a state court has equal jurisdiction with the federal courts in such case.

These Constitutional rights of which I have spoken are all of equal force and effect, and the right of free speech and freedom of the press under which this bannering might possibly be done then raises the question as to what is the purpose of the bannering.

It is not necessary to decide in this case whether or not, if a job is bannered purely and simply for the purpose of giving to the public the benefit of a trade union’s grievance, that sort of thing can and should be enjoined because in this case the evidence is, by some of the defendants themselves, that the purpose of bannering this project was to cause, or attempt to cause the plaintiff to cease doing business with the man Collins. That purpose is clearly shown, in the opinion of the court, by the wording of the banners. The result of that action was a work stoppage.

The polestar case in the state of Ohio on this subject is the LaFrance case which is reported in 108 Oh St, and on page 95 the court uses the following language — I do not want to misquote, so am going to read it:

“Equality of justice demands that in any controversy the rights of all parties be scrupulously maintained. The right of the workmen to be employed, irrespective of union membership, must be maintained; the right of the employer to conduct his business without illegal interference must be upheld; and legal means employed by strikers must not be curtailed.”

The question resolves itself therefore, into whether or not this was a legal right of those who have a grievance with labor.

The Supreme Court of Ohio in its last pronouncement on this subject ha's set at rest that question; but before coming to that, probably the most discussed case in the State of Ohio upon this subject is that of Crosby v. Rath, reported in 136 Oh St, 352, 16 O. O. 496. In that case the Supreme Court of Ohio said:

“The right to contract, the right to do business and the right to labor freely and without restraint are all Constitutional rights, equally sacred, and the privilege of free speech cannot be used to the exclusion of the other Constitutional rights, nor as an excuse for unlawful activities in interference with another’s business.”

In this Crosby case a situation existed as between an employer and a trade union, in which the trade union was seeking by picketing and bannering, and the use of force and violence, to cause that employer to insist that his employees be unionized, and in the event they were not, to discharge them and have only union employees. The Supreme Court in that case held that that sort of picketing and that sort of action was unlawful, and was not protected by the Constitutional guaranty of free speech and freedom of labor.

The last pronouncement as I said of the Supreme Court of Ohio is found in 156 Oh St, page 541, 46 O. O. 460, commonly known as the Anderson case. In that case the syllabus, or part of it, written by the court, in the opinion of this court fits the case before me like a glove. That was a case in which there was a dispute between a trade union and a sub-contractor and his employees. There was picketing in that case. The Supreme Court, in the third paragraph of the syllabus, which as you gentlemen know who are educated in the law, is the law of the case, stated as follows:

“Where a building trades union which has a labor dispute with one of several subcontractors on a construction job, pickets and banners the construction site for the purpose of inducing the cráft employees of the general contractor to quit their employment in concert and thereby bring about a work stoppage on the entire construction job, all for the further purpose of influencing such general contractor to cause the discharge of the subcontractor with whom the union has the labor dispute such picketing and bannering constitute a secondary boycott.”

As the court has stated, the controversy here, if there is a controversy, is between Collins, a subcontractor, and these labor organizations. The defendants when their turn came, offered not one scintilla of evidence to show that they had any dispute whatever with Meadowbrook Homes, Inc. Their dispute, whatever it is or whatever it is worth, is with Collins; and when these unions picketed this job, and as has been testified for the purpose of causing Meadowbrook Homes, Inc. to discharge Collins and breach its contract with him, then their actions became entirely illegal, not protected by the Constitutional provision of free speech or freedom of the press, were an infringement on the rights of Meadowbrook and a court of equity is under the obligation to enjoin such actions.

As to one of the defendants, The Cincinnati Building Trades Council, the only evidence is that it is an association of the trade unions in this city and in the northern part of the state of Kentucky; that it does not call strikes: does not banner any place, but that' the different unions meet at its headquarters, and from the evidence the court assumes that matters are discussed that are to their mutual benefit.

The court does not feel that there has been any substantial evidence to warrant the issuance of a temporary restraining order against the Cincinnati Building Trades Council — and I am saying that with the knowledge that one of the defendants who is a business agent for one of the unions stated he got permission from the Building Trades Council to banner the plaintiff’s project. The evidence clearly discloses that the person at the Building Trades Council with whom he talked was not authorized to bind the Trades Council.

The judgment of the court therefore is that a temporary restraining order will be issued against the International Hod Carriers and Building Laborers Union of America, the Cement Finishers Union, International Teamsters, John Travis, James E. Hines. George Starling and James Webb, to restrain them from any further picketing or interfering with this project, and that that injunction will become effective upon the giving of a bond in the sum of one thousand dollars.

The court will not dismiss the Building Trades Council nor Frank C. Vincent as defendants in the suit, but the court declines to issue any temporary restraining order against them.

An entry may be prepared in accordance with the findings of the court.


author: By THE COURT.

text:
    CHANEY, Plaintiff-Appellee, v. HAMM, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4732.
    Decided May 2, 1952.
    Key, Butler & Harrison, Columbus, for plaintiff-appellee.
    Noel L. Greenlee, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Common Pleas Court finding for the plaintiff for the sum of $1701.00 with interest and costs of suit. The action was brought by the plaintiff-appellee as endorsee of the following promissory note:

“$2700.00 Columbus, Ohio, May 24 1948
“Two years________after date for value received. I promise to pay Carl F. Hamm or order the sum of Twenty-Seven Hundred and no/100 Dollars, with interest at the rate of six per cent per annum, payable and computed annually.
“Said principal sum is payable as follows.
“Thirteen Hundred Fifty Dollars, on the 24th day of May, 1949, and a like amount on the 24th day of May, 1950, until the whole amount including interest is fully paid. And if any such installment or said interest, or any part thereof, be not paid when due, the same shall draw interest at the rate of eight per cent per annum from the date of maturity, until paid; and if any installment or said interest or any part thereof remain unpaid for thirty days after its maturity, the principal sum and accrued interest shall thereupon become due and payable, if the legal holder of this note so elect, without demand made therefor, and without notice thereof.
“And I do hereby authorize any Attorney-at-Law to appear for me in an action on the above note, at any time after said note becomes due, in any court of record in the United States, to waive the issuing and service of process and confess a judgment in favor of the legal holder of the above against me, for the amount that may be due thereon, with interest at the rate therein mentioned, and costs of suit, and to waive and release all errors in said proceeding, petitions in error, and the right of appeal from the judgment rendered.
Charles M. Torbert”

The case was submitted to the Court without the intervention of a jury, upon an agreed statement of facts, which may be epitomized as follows:

• The plaintiff-appellee is. a holder in due course of the said promissory note; that when the first instalment became due on May 24, 1949, the same was not presented for payment in accordance with §8175 GC, but that the niaker was called on the telephone and told that the note was due; that the endorser of the note was not notified of the'nonpayment of the same until June 10th. Counsel for the plaintiff-appellee admit the statutory requirements with reference to presentment for payment and notice of dishonor but urges that this was not necessary as the note did not become due until May 24, 1950; that the first installment only was due and the statutory requirements had no application. We cannot concur in this conclusion. In Elworthy-Helwick Co. v. Hess, Exr., 9 Oh Ap 200, the Court held that when a note is made payable in installments the promise to pay each installment is a separate note in itself; therefore, under §8194 GC the defendant-appellant was discharged by reason of the failure to receive notice, of the nonpayment. It is urged by the defendant-appellant that the failure to comply with the foregoing sections upon election by the endorsee to mature the note thirty days after the first installment became due, is also fatal and precludes any recovery by the plaintiff-appellee. This would be true were it not for the fact that the note waives demand and notice upon the acceleration of the due date, the provision being,

“* * * if any installment or said interest or any part thereof remain unpaid for thirty days after its maturity, the principal sum and accrued interest shall thereupon become due and payable, if the legal holder of this note so elect, without demand made therefor, and without notice thereof.” (Emphasis ours.)

Sec. 8187 GC provides that presentment for payment may be dispensed with by waiver of presentment, express or implied.

Sec. 8215 GC provides that when the waiver is embodied in the instrument itself, it is binding upon all parties. See also Billings v. Lambert, 63 Oh Ap 116.

The defendant-appellant also urges that the plaintiff-appellee should have been required to pursue a chattel mortgage which was also endorsed to the plaintiff-appellee at the same time that the note was endorsed, before attempting to hold the endorser. But there can be no prejudicial error here for the reason that the property covered by the chattel mortgage had become dissipated. See page 9 of the bill of exceptions. It may be noted also that a mere delay to enforce the mortgage lien will not discharge the endorsee. Farmers Bank v. Raynolds, 13 Ohio 85.

We therefore hold that the Court properly rendered judgment for the defendant upon the first installment of the note and for the plaintiff for the balance due.

Finding no error in the record, the judgment will be affirmed.

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


text:
    MITCHELL, In re.
    United States Court of Appeals, Sixth Circuit.
    No. 11662.
    Decided February 19, 1953.
    Marvin L. Gardner, John W. Dilgren, Toledo, for appellant.
    Robert Merkle, Cleveland, for appellee.
    Murray A. Nadler, Youngstown, amicus curiae.
    Before SIMONS, Chief Judge, and MARTIN and MILLER, Circuit Judges.
   OPINION

Per CURIAM.

This appeal having been heard upon the record, briefs and argument of counsel for the respective parties.

And the court being of the view that the opinion of the Attorney General of Ohio construing the statute herein involved, is not controlling in the decision of this case within the meaning of the rule announced in Erie Railroad Co. v. Tompkins, 304 U. S., 64, 11 O. O. 246, 58 S. Ct. 817, 82 L. Ed. 1188; In re Avery, 6 Cir., 114 F. 2d 768, 770; In re Zaepfel & Russell, Inc., D. C., 49 F. Supp. 709, 710, affirmed Farmer’s State Bank v. Jones, 6 Cir., 135 F. 2d 215; Leddy v. Cornell, 52 Colo. 189, 120 P. 153, 38 L. R. A., N. S., 918; Follmer v. State, 94 Neb. 217, 142 N. W. 908; Jones v. Williams, 121 Tex. 94, 45 S. W. 2d 130, 79 A. L. R. 983;

And that the construction and application of the statute to the facts of this case, as made by the district judge, is not erroneous;

It is ordered that the judgment of the District Court be affirmed on the grounds and for the reasons stated in the opinion of the district judge.


author: By SHARP, J.

text:
    TAYLOR, PRINTER, INC., Plaintiff, v. STACEY et, Defendants.
    Common Pleas Court, Columbiana County.
    No. 39883.
    Decided February 6, 1953.
    Raymond S. Buzzard, East Liverpool, for plaintiff.
    James L. MacDonald, Pros. Atty., G. William Brokaw, Asst. Pros. Atty., for defendants.
   OPINION

By SHARP, J.

In this case the Plaintiff has filed a Petition for a Declaratory Judgment against the individual members of the Board of Election as members of said Board, and against the Clerk, alleging that he, the Plaintiff, operates a printing company and that it is a responsible printing company and that in requesting bids on ballots the Defendants required that a particular union label be used on the ballots. Plaintiff says that he has adequate equipment and staff for printing ballots, and desires to submit bids for such printing in the future without agreeing to use a union label or union labor and he asks a declaratory judgment declaring that the Defendants and their successors are without authority to require the printer of ballots for elections to use a union label on the ballots and are without authority to require the printer of ballots for elections to use union labor in printing ballots.

To that the Defendants have filed an Answer admitting that the Plaintiff operates a responsible printing business in Lisbon; admitting that in negotiating for a contract for the printing of ballots for use at the general election held November 4, 1952, the Board did stipulate that said printed ballots should bear the Typographical Union Label or the Allied Printing-Trades Council label; that all printed ballots furnished for use at other elections have borne either one or the other of those labels.

Further answering the Defendants admit that there are no provisions in the election laws of the State of Ohio which require the use of a union label or that ballots be printed by members of labor unions; admit that the Secretary of State of the State of Ohio has issued no such instructions. Then the Defendants go on to say that their action is in all respects in accordance with the laws of the State of Ohio and that in performing their official duties in respect to negotiating for a contract for furnishing the ballots the stipulating that the- printed ballots shall bear either the Typographical Union label or the Allied Printing Trades Council label, is not an abuse of discretion.

To that Answer the Plaintiff has filed a Demurrer and cited cases in support of his Demurrer.

It seems quite clear to the Court that if a public board which has to do with the spending of tax money for public purposes can stipulate that, as in this case, the ballots must bear a union label and in consequence must be printed by union labor, they could also stipulate that the ballots must not bear a union label and must be printed by non-union labor.

The law provides that the contract must be issued to the lowest responsible bidder. It makes no mention whether he employs union labor or non-union labor and in reason, and by virtue of the authorities cited by the Plaintiff, it seems abundently clear to the Court that it is an abuse of discretion for a public board, letting out a contract in expenditure of public money, to attempt to take a position either in favor of or against union labor. They should be concerned solely with the lowest responsible bidder. If a non-union bidder can make a lower bid than a union bidder for the expenditure of public money, he is entitled to the contract and, on the contrary, if a union bidder can make a lower bid he is entitled to the contract.

THEREFORE, the Plaintiff’s Demurrer to Defendants’ Answer will be sustained, and judgment is entered for Plaintiff and Counsel for Plaintiff will prepare the Journal Entry.


author: By MILLER, J.

text:
    NAPOLET, d. b. a. WORKINGMAN’S CAFE, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4842.
    Decided January 20, 1953.
    Joseph T. Molitoris, Clarence H. Klinger, Warren, for appellant.
    C. William O’Neill, Atty. Genl., Ralph N. Mahaffey, Asst. Atty. Genl., Columbus, for appellee.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Court of Common Pleas affirming the order of the Board of Liquor Control revoking the appellant’s Class D-5 permit, for the illegal sale of whiskey by the bottle, and maintaining the permit premises in an unsanitary condition in violation of the provisions of the Liquor Control Act. The Common Pleas Court found “that the order is supported by reliable, probative and substantial evidence; that it did not amount to an abuse of discretion,” which the appellant urges is not in accordance with the requirements of §154-73 GC in effect at the time of the alleged violation, to wit, on April 21, 1951, and prior to the amendment which became effective on August 28, 1951.

The record discloses the hearing before the Board was had on February 5, 1952, but is silent as to the date the proceeding was instituted. Since the alleged violation occurred on April 21, 1951, it will be assumed that the proceeding was instituted soon thereafter and prior to the date of amendment. Therefore, §154-73 GC, effective on April 21, 1951, will have application. Under this section the appellant was not entitled to a de novo trial of the matter which was before the Board but only to a review of its action. The Court could not substitute its judgment for that of the Board. Farrand v. State Medical Board, 151 Oh St 222; Meyer v. Dunifon, Director, etc., 88 Oh Ap 246.

It is also urged by the appellant that the evidence was insufficient to establish the fact that a bottle of intoxicating liquor was sold on the permit premises for the reason that the best evidence was not produced, to wit, the bottle itself, and no showing was made that it could not be produced. The only evidence on this subject was the testimony of Carl B. Stokes, investigator for the Department of Liquor Control, who testified that the contents of the bottle was Seagram’s Seven-Crown whiskey in the original bottle with seal across the top unbroken. The question therefore presented is whether “the best evidence rule” is applicable to objects and chattels. The rule as stated in 32 Corpus Juris Secundum, 7.06, Section 782, is as follows:

“* * * Likewise, although the best evidence rule has been applied to evidence of physical objects, the rule does not apply to proof of the nature, appearance, and condition of mere physical objects, but these facts may be proved by parol without offering the objects themselves in evidence or accounting for their absence, and even where the objects themselves are present in court. Hence, whatever the law may have been in early times, at the present clay it can be said to be well settled that the best evidence rule applies exclusively to documentary evidence; and this is the view adopted by the more modern writers on the law of evidence.”

Professor Wigmore in his treatise on Evidence, Volume IV, Section 1181, states that:

“The real reason indicated for the rule shows why it has come to be generally accepted that only documents, or things bearing writing, can be within the purview of the rule.
“In the first place, it is in the terms and the construction of language that the special risk of error lies. To remember, for example, the color of a horse is a simple matter in comparison with remembering or even accurately transcribing the terms of a written warranty about the horse. In the second place, it is chiefly in respect to language that slight inaccuracies are likely to be of important legal consequence. A mistake, for example, in counting the number of bushels in a bin of wheat can hardly lead to serious consequences, but a mistake in a few letters of an ordinary deed may represent it as giving to Jones instead of to Jonas or as giving five hundred instead of four hundred acres.
“For these reasons, it is entirely proper that a rule of such strictness should not be applied so broadly as to require the production of anything but writings; and such is the accepted doctrine: * * *.”

In Cincinnati N. O. & T. P. Ry. Co. v. Rawson, 9 Dec. 709, the Court held that a witness may testify that he sold shares of stock in a corporation and delivered the certificates thereof to the transferee without producing the certificates for inspection. The pronouncement in this case, we think, is in accord with the rule as laid down in Corpus Juris Secundum and Wigmore on Evidence.

We find no error in the record, our conclusion on the facts in question being the same as that of the Common Pleas Court. We also find that the order of the Board of Liquor Control was made in accordance with law.

The judgment will therefore be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By McALLISTER, Circuit Judge.

text:
    JACOB v. PENNSYLVANIA R. R.
    United States Court of Appeals, Sixth Circuit.
    No. 11628.
    Decided April 4, 1953.

      Augustus Beall, Jr., George E. Whitman, Cincinnati (Hoover, Beall, Whitman & Eichel, Cincinnati, of counsel), for appellant.
    William A. McKenzie, Cincinnati, (Graydon, Head & Ritchey, Cincinnati, of counsel), for appellee.
    Before SIMONS, Chief Judge, and MARTIN and MCALLISTER, Circuit Judges.
   OPINION

By McALLISTER, Circuit Judge.

Appellant seeks review of an order of the district court dismissing her complaint on the ground that it did not state a cause of action.

The complaint set forth that appellant’s decedent. William H. Jacob, was at the time of his death, an employee of the Railway Express Agency, Inc., and that, on August 23, 1947, he was riding in an express car, in the performance of his duties as an express messenger on a train of appellee, Pennsylvania Railroad, en route between Chicago, Illinois, and Cincinnati, Ohio. The complaint further set forth that on that day, it was extremely hot, the temperature having risen to 90°; that, when the train arrived at Hagerstown, Indiana, the railroad company was informed that Mr. Jacob was ill; that thereafter, the train stopped at Richmond, Indiana, when he was found to be in a critical condition; that the railroad company did nothing to obtain medical attention for him there but left him in the car and proceeded to Eaton, Ohio, where it was found that he was lying unconscious on the floor of the express car. Nothing was done here, however, to obtain medical attention, and the train proceeded on with Mr. Jacob in an unconscious condition until it reached Hamilton, Ohio, where, two hours after appellee railroad became aware of Mr. Jacob’s condition, he was removed to a hospital, and shortly thereafter, died of heat prostration.

Appellant in her complaint alleged that the death of decedent was due to the negligence of the appellee in its complete failure to fulfil its duty toward the deceased, and in its wanton disregard of the decedent’s welfare in failing for several hours after his illness was discovered to obtain medical attention for him, or taking any steps whatsoever for the preservation of his life.

Upon the filing of appellant’s complaint, appellee filed a motion for a summary judgment on the ground that the complaint failed to state a claim against the railroad company upon which relief could be granted, and in support of its motion, filed a copy of a contract between the Pennsylvania Railroad and the Railway Express Agency, Inc., in which it was provided that:

“Article VII.
“As between the Rail Company and the Express Company, the Express Company shall be liable:
“(b) For any and all injury to, or death of, its agents, or employees while engaged in its business on any of the lines or premises covered by this agreement;
“The Express Company shall indemnify and save harmless the Rail Company or any agent or employee of the Rail Company against all claims, demands, suits, and actions whatsoever, including expense of litigation, that may be begun against any of the same on account of any claim arising or growing out of liability assumed by the Express Company under this Article, whether in law or in equity or before any compensation board, tribunal, or court whatsoever.”

It is contended by appellant that the Pennsylvania Railroad owed the same duty to appellant’s decedent as it did to fare paying passengers; that Mr. Jacob was entitled to the same measure of care from the railroad as an ordinary passenger for hire, and that, when the railroad had knowledge of his illness and his need for medical attention, it was its duty to give him such reasonable attention as the circumstances permitted; and that, since he was too ill to remain on the train with safety, there was a duty to remove him and place him in the proper custody for such care, which t,ie railroad negligently failed to perform; that it is liable in damages for such negligent conduct; and that the court erred in granting the motion for a summary judgment.

The order dismissing the complaint did not state the grounds upon which it was based. However, on this appeal, appellee contends for affirmance of the judgment on the ground that the railroad was relieved of liability because of the provisions of the foregoing contract; that the decedent was not a passenger for hire, and, as such, was entitled only to his common law right not to be injured by another; and that, assuming decedent was a passenger for hire, appellant’s complaint failed to allege a breach of the contract of carriage.

In support of its argument, appellee relies upon the authority of Baltimore & Ohio Southwestern Railway Co. v. Voigt, 176 U. S. 498, 20 S. Ct. 385, 392, 44 L. Ed. 560. In that case, it appeared that there was an operating agreement between the express company and the railroad company in which the express company agreed to hold the railroad harmless from liability for all claims of the express company’s employees. The railway express messenger who sought damages for negligence from the railroad company had entered into an agreement to relieve the express company from liability for injuries, and also to hold the railroad company, with which the express company had the operating agreement, harmless from all liability. Mr. Justice Shiras, speaking for the court, held that the express messenger was not a passenger; that he was not constrained to enter into the contract whereby the railroad company was exonerated from liability to him, but entered into the agreement freely and voluntarily, and obtained the benefit thereof by securing his appointment as such messenger; that such a contract did not contravene public policy, and that he was not entitled to maintain an action against the railroad company to recover for damages sustained as a result of the negligence of the company. The case was, however, distinguished by the court from a number of cases holding that postal clerks in the employ of the government, and who paid no fare, were entitled to the rights of ordinary passengers for hire. The court, in this regard, declared that there was an obvious distinction between a postal clerk and the case of the express messenger in the Voigt case in that the messenger had agreed to the contract between the express company and the railroad company, exempting the latter from liability, but that no case had been cited in which a postal clerk voluntarily had entered into such an agreement. “To make the cases analogous,” the court said, “it should be made to appear that the government, in contracting with the railroad company to carry the mails, stipulated that the railroad company should be exempted from liability to the postal clerk, and that the latter, in consideration of securing his position, had concurred in releasing the railroad company.” But in the instant case, although there was a contract between the railroad company and the express company in which it was agreed that, as between the railroad company and the express company, the express company should be liable for all injury to or death of its agents or employees while engaged in its business on the railroad, nevertheless, there was no agreement on the part of Mr. Jacob to exempt the railroad from any liability for injuries resulting from its negligence; and, in this, the distinction pointed out by Mr. Justice Shiras gives support to the contention of appellant that here, the railroad was not relieved of liability through the contract, as that contract was only a contract between the railroad company and the express company, which had no binding force over any rights of Mr. Jacob

In this connection, it is interesting to note that the opinion of the Supreme Court in the Voigt case was rendered on certified questions from this circuit, and that Judge Taft, later Chief Justice Taft, speaking for this court, there held that the contract by which the employee had released the railroad from liability was void as being against public policy. Voigt v. Baltimore & Ohio S. W. Ry. Co., CC., 79 F. 561.

The case before us was commenced in the Court of Common Pleas of Hamilton County, Ohio, and thereafter removed to the federal court. The conduct of which appellant complains occurred in the state of Ohio, and Ohio law, therefore, governs this case. The controlling authority appears to be the case of The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. v. Kinney, 95 Oh St, 64, 115 N. E. 505, 510, L. R. A. 1917D, 641, in which the Supreme Court of Ohio held that a contract between an employer and an employee, which nullifies or lessens any legal duty which the employer owes to the employee relative to safeguarding the life, limb, safety, health, or welfare of the latter, is contrary to public policy and, therefore, null and void. In that case, a woman who was employed as a car cleaner had entered into a contract of employment in writing with the Pullman Company, in which it was provided that, in consideration of her employment and payment of wages by the Pullman Company, she would assume all risks of accident or casualty incident to such employment, and would relieve the Pullman Company from all liability therefor. The contract further recited that the Pullman Company had a contract of carriage with the railway company whereby the Pullman Company had promised and agreed to protect the railroad company from any and all liability arising out of the negligence of the defendant railway company, or its employees, in causing death or injuries to any of the employees of the Pullman Company. The contract between the employer and the Pullman Company further recited the substantial terms of such release in the contract between the railway company and the Pullman Company, and contained the provision that the Pullman Company might assign its release on the part of the employee to any railroad company carrying the Pullman Company’s cars. The court held that, as between the employee and the Pullman Company, the contract, in so far as it undertook to release the Pullman Company or any railroad company from negligent acts causing death or injury to the employee, was invalid because it was contrary to public policy. The Kinney case above discussed is almost identical on its facts to the case of Baltimore & Ohio Southwestern Railway Co. v. Voigt, supra, but, in arriving at a diametrically opposite conclusion, Justice Wanamaker, speaking for the Supreme Court of Ohio in the Kinney case, declared that the “sort of leopard-spot public policy which Justice Shiras attempts to lay down in the Voigt case is wholly indefensible and unconscionable.”

Prom the foregoing, it appears that not only is the right of appellant to maintain her action in the instant case sustained by the authority of the Voigt case on the ground that Mr. Jacob himself entered into no contract relieving the railroad from liability, but, moreover, under the controlling Ohio authority of the Kinney case, the right to maintain such action is clearly and forcefully declared, even though the employee had entered into the agreement relieving the railroad from liability, inasmuch as, under the law of the state of Ohio, such a contract would be void as against public policy.

We turn, then, to the question whether Mr. Jacob, in his capacity as an express messenger riding on appellee’s train, was to be regarded as a passenger or a licensee, and the nature of the duty of care owed to him by the railroad.

The general rule is that an express agent, permitted to ride under a contract without payment of fare, is generally regarded as an ordinary passenger. In Voight v. Baltimore & Ohio S. W. Ry. Co., C. C., 79 F. 561, 562, Judge Taft said: “It seems to be well settled that an express messenger, though carried in a special car, when carried under a contract with a railroad company made by the express company for the transportation of express matter in his charge, is a passenger for hire.” In the leading case of Davis v. Chesapeake & Ohio Ry. Co., 122 Ky. 528, 92 S. W. 339, 340, 5 L. R. A., N. S., 458, 121 Am. St. Rep. 481, 12 Ann. Cas. 723, it was said:

“While there is some conflict in the authorities on the question, we are of the opinion that the courts which hold that an express messenger though carried in a special car, under a contract with the express company for transportation of express matter, announce the correct doctrine in holding that they are passengers for hire. The sum which the express company pays the railroad company for conducting its express business, on its cars, over its line of railway is necessarily, in part, for the transportation of the express messenger. The express messenger is not a trespasser, because he is being transported by the railroad company under a contract and for the same reason he is not a licensee. He is an employe of the express company and not of the railroad company. If he is not a trespasser or a licensee, or an employe of the railroad company, he must necessarily be a passenger. While the railroad company could not be compelled to enter into a contract by which it would receive into the express car the messenger of the express company and thus transport him, still when he does agree to, and does receive him on that car for transportation, though his business is to look after express matter, he is being transported for compensation, hence, as a passenger for hire. Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 628 [528] 597; Blair v. [Erie] Railroad Co., 66 N. Y. 313, 23 Am. Rep. 55; Brewer v. [N. Y. L. E. & W.] Railroad Co., 124 N. Y. 59, 26 N. E. 324, 11 L. R. A. 483, 21 Am. St. Rep. 647; Kenney v. [New York Cent. & H.] Railroad Co., 125 N. Y. 422, 26 N. E. 626; Pennsylvania Co. v. Woodworth, 26 Oh St, 585; [Kentucky Central] Railroad Co. v. Thomas’ Adm’r., 79 Ky. [160] 169 [2 Ky. Law Rep. 114], 42 Am. Rep. 208; Jones v. [St. Louis S. W.] Railway Co., 125 Mo. 666, 28 S. W. 883, 26 L. R. A. 718, 46 Am. St. Rep. 514; Yeomans v. [Contra Costa Steam] Navigation Co., 44 Cal. 71; [Cleveland, C., C. & St. L.] Railroad Co. v. Ketcham, 133 Ind. 346, 33 N. E. 116, 19 L. R. A. 339, 36 Am. St. Rep. 550; Chamberlain v. [Milwaukee & M.] Railroad Co., 11 Wis. 238; [Gulf, C. & S. F.] Railroad Co. v. Wilson, 79 Tex. 371, 15 S. W. 280, 11 L. R. A. 486, 23 Am. St. Rep. 345.”

In Hutchison on Carriers, Section 564, it is said: “It seems that if the person who is injured by the negligence of the employees of the carrier, is lawfully upon its conveyance, under a contract which does not make him an employee or servant of the company, he will be entitled to the same care and diligence for his safety as one who is strictly a passenger. Thus, where one was upon a train as an express messenger, carrying express freight, under contract with the company, by which he was entitled to be carried, without a distinct price for his passage, and was injured by the negligence of the company’s agents in the management of the train, or in putting obstructions in its way, it was held that such messenger was entitled to the same care and circumspection on the part of the company and its agents in his carriage as if he had been traveling upon the train as a passenger, who had paid a distinct price for his transportation.” In 3 Thompson on Negligence, Section 2651, it is said: “In respect of the measure of duty which the carrier owes him and his right of recovery for an injury happening through the negligence of the carrier’s servants, an express messenger stands on the same footing as a U. S. postal clerk. He is on the carrier’s vehicle lawfully, and for a consideration paid by the company, and his legal rights are therefore those of a passenger for hire.” In Section 1578, vol. 4, Elliott on Railroads, it is said: “The courts have held the relation of carrier and passenger to exist in cases of mail agents, or postal clerks, and a similar rule is declared as to express messengers.”

As submitted by counsel for appellee, if the duty to an express messenger by the carrier is the same as the duty by it to a passenger, then the carrier is required to exercise that same care for the safety and welfare of the messenger who becomes sick on the train as it would for a fare paying passenger. It follows that if the carrier’s servants know, or have notice of facts requiring them, in the exercise of reasonable prudence, to know that a passenger is sick or in need of attention, and unable to care for himself during his journey, the carrier owes him an added duty resulting from the change of situation. It is the duty of the carrier’s servants to give him such reasonable attention as the circumstances permit; and if they know or should know, that he is too ill to remain on the train with safety, it is their duty, if practicable, to remove him and place him in the hands of someone who can look after him. Middleton v. Whitridge, 213 N. Y. 499, 108 N. E. 192. See also Alabama Great Southern R. Co. v. Alsup, 5 Cir., 101 F. 2d 175, 176, 177. As to whether there may be evidence from which a jury may find that an omission of duty which appellee owed deceased was the proximate cause of death, see Middleton v. Whitridge, 213 N. Y. 499, 513, 108 N. E. 192. From the foregoing, it is our conclusion that appellant’s petition stated a cause of action against appellee railroad company under which, upon sufficient proofs, relief can be granted, and that, accordingly, appellant is entitled to a trial of the cause on its merits.

The judgment of the district court is, therefore, reversed and the case remanded for further proceedings in accordance with this opinion.


author: By BARTLETT, J.

text:
    HUBMAN SUPPLY CO., Plaintiff, v. IRVIN, Defendant.
    Common Pleas Court, Franklin County.
    No. 187225.
    Decided August 7, 1953.
    Noel E. Greenlee, Columbus, for plaintiff.
    McGhee, Rowe & Evans, Columbus, for defendant.
   OPINION

By BARTLETT, J.

INJUNCTION DENIED

Plaintiff company manufactures and sells janitor supplies, including cleaning materials, sanitary products and allied lines; on May 28, 1951, plaintiff employed defendant as a representative and salesman, and assigned him certain territory, customers and accounts within Franklin County, plaintiff reserving the right to change such assignment.

As part of the written contract of employment, defendant agreed not to engage in or operate for any other person any such janitors’ supply business, or offer for sale any products or merchandise of any other person similar or comparable to those of plaintiff company, during the life of the contract, “or any modification thereof, nor during a period of ten months after leaving the employ of the company for any cause, whether before or after the termination of this contract, and within any and all territory wherein the Company sells and distributes its products and merchandise, and wherein Employee has represented the Company at any time during his employment.” (Emphasis ours.)

While employed as salesman the deféndant was paid on a commission basis; but on November 1, 1951, he was made assistant sales manager on a stipulated salary, with no particular assignment of territory, and thereafter called upon at various times customers of plaintiff in all territory served by plaintiff, which included not only the entire state of Ohio but also three other states.

February 13, 1953, defendant resigned his employment with plaintiff Company, and entered the service of another company engaged in a business similar to that of plaintiff, as representative and salesman of said other firm.

Plaintiff seeks an injunction to prevent defendant from operating for any other person in said janitors’ supply business or offering for sale any products or merchandise of any other person similar or comparable to those of plaintiff, and within Franklin County.

Counsel for plaintiff contends the employment of defendant as Assistant Sales Manager merely constituted a modification of his contract of employment; but counsel for defendant insists his employment as assistant sales manager resulted in a termination of the original contract of employment.

The Court is convinced that it is immaterial whether this new assignment as assistant sales manager resulted in a modification or termination of the original contract of employment. The covenant involved provides this part of the contract is “as a condition precedent and as a permanent-partial consideration of his employment,” and that it operates not only “during the life of the contract, or any modification thereof,” but “during a period of ten months after leaving the employ of the Company for any cause, whether before or after the termination of this contract.” (Emphasis ours.)

The question in any event still remains, is this particular covenant in the contract enforceable in a Court of Equity?

The changes in his employment from salesman to assistant sales manager increased the territorial extent of the covenant to not only the entire State of Ohio, but three other states as well, since the covenant expressly applied, “within any and all territory wherein the Company sells and distributes its products and merchandise, and wherein Employee has represented the Company at any time during his employment.”

The evidence disclosed the plaintiff company did business throughout Ohio and three other states, and that defendant’s employment as assistant sales manager took him not only to different sections of Ohio but out of the state as well. In fact the petition recites that defendant “continued to represent plaintiff in said latter capacity (Assistant Sales Manager) and continued to call upon, serve and contract at various times customers of plaintiff within Franklin County, Ohio, territory and in other territories served by plaintiff in its business operations.”

Plaintiff Company in its anxiety to protect itself or to hem in the defendant, stretched the covenant beyond the legal realm recognized by the law, creating the fatal defect of such covenant, in that it was made to apply not only to the entire State of Ohio, but other states as well.

“2. Where one engaged in the same business as another, purchases that of the latter with its good will, and takes from the latter a stipulation that he will not directly nor indirectly engage in the same business in the state nor in the United States for the period of twenty-five years, such agreement necessarily tends to create a monopoly; and whether necessary or not to the reasonable enjoyment of the good will so purchased, the interest of the public in the non-enforcement of such an agreement outweighs the interest of the purchaser in its enforcement, and is void.

“3. Such an agreement is not divisible, for the reason that if restrained to the limits of the state, still such restraint would be general in its nature, and obnoxious to all the objections that exist against a general restraint of trade.” The Lufkin Rule Co. v. Fringeli, et al., 57 Oh St 596.

The case of Gates-McDonald Co. v. McQuilkin, 34 N. E. (2nd) 443, 33 Abs 481, held invalid the restrictive covenant in a contract that the employee, upon termination of his employment, would not, within' three years thereafter, “make his services available directly or indirectly to Ohio employers in the matter of rendering them any service in connection with their workmen’s compensation matters.” The Court does not refer to the fact that this restrictive covenant covered the entire State of Ohio, but bases the invalidity of such restriction on the general principle that it “imposes undue hardship on the employee, is greater than is required for the plaintiff’s protection.”

“Contract prohibiting defendant from engaging in beauty parlor business for ten years, without any limitation as to space, is not divisible so as to restrict meaning to county, but is void as in general restraint of trade.” Emler v. Ferne, 23 Oh Ap 218.

In the Lufkin Rule Co. case, supra, Minshall, J., in delivering the opinion of the court on p. 602, says:

“It is the settled rule in this state that all agreements in general restraint of trade are against public policy and void;

and on p. 603 he refers to the opinion of the court in Lange v. Werk, 2 Oh St 519, wherein Ranney, J., says:

“No case is found where such a contract has been upheld, which covered the whole of England or a state of this Union;” then Minshall, J., adds:
“Such restraints are regarded as general.”

It will be observed that in the case before us, the restraint is not only to the State of Ohio but three other states by virtue of the express terms of the restrictive covenant that it applied to “any and all territory wherein the Company sells •and distributes its products and merchandise, and wherein Employee has represented the Company at any time during his employment.” The evidence disclosed that his authority and activities as assistant sales manager extended not only throughout Ohio but in three other states.

This Court, therefore, holds that the agreement in the instant case is in general restraint of trade, since it covers the entire state at the least, and is not capable of such a division as, under any circumstances, would make it a valid one.

Counsel for the plaintiff assumes the erroneous theory that the plaintiff-employer is not required to offer proof of damages resulting from violation of such restrictive covenants by an employee, since such damages are inferred by reason of such violation, where the employee engages in similar business operations.

“16. If the owner of an established business sells it and enters into a reasonable covenant not to compete with the buyer, irreparable injury will be presumed from the mere violation of the covenant; but where there is an agreement not to compete after a term of employment irreparable injury, actual or threatening, must be proved, it is not presumed.” Arthur Murray Dance Studios, etc. v. Witter, 62 Abs 17, 19.

The Murray Dance Studio case, supra, while a nisi prius decision, is one of the most exhaustive reviews of the subject matter to be found in the books in all common law countries.

“1. Contracts in restraint of trade, though the restraint is partial only, are not looked upon with favor, are strictly construed and are enforced only in clear cases, where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others.” Schroeder et al v. Harry Schultz, et al., 16 C. C. (n. s.) 303, Syl. 1.

See to the same effect as the Schroeder case, supra, Murray Dance Studio case, supra: Brewer v. Brewer, 84 Oh Ap 35, 46.

There has been no showing in this case that the restraint sought is necessary to protect the plaintiff; it certainly is oppressive to the employee; any such restraint is presumed illegal as harmful to the public; plaintiff’s right to injunction is not clear for two reasons, the legal right itself is not shown, as well as a failure to show any actual injury to plaintiff; injunction is not a matter of right but rests in the sound discretion of the court, and is denied unless the whole matter appears equitable; there is no showing the defendant actually enticed away and diverted to his new employer, any customers he had served for plaintiff; there is some indication of a desire to suppress and discipline his former employee because of personal enmity of the President of the plaintiff company; there is no evidence the defendant wrongfully disclosed or used trade secrets, if any, of plaintiff; several other rivals are engaged in the same business as plaintiff; and remembering that the burden is on the plaintiff company to prove irreparable injury, where is the proof? Certainly there is not one microscopic bit of evidence of actual injury. It is not shown that plaintiff lost one customer or one penny.

Six months have elapsed since the defendant resigned and entered the employment of a rival concern, and yet there has been no proof of any actual injury to the plaintiff.

This Court is asked to substitute presumption for proof. We are asked to presume irreparable injury. The great weight of authority is to the effect that in the case of such covenant by an employee, irreparable injury, actual or threatening, must be proved. There only remain four months more in the life of the restrictive covenant sought to be enforced. In the light of the past six months, it is impossible to even imagine any real injury to plaintiff in the next four months due to the loss of the defendant employee to a rival concern.

Injunction denied. Judgment for costs against plaintiff-company. Entry accordingly with exceptions by counsel for plaintiff.


author: By DIETRICH, J.

text:
    DiPAOLO, Admr., v. SMITH et.
    Probate Court, Portage County.
    No. 4520.
    Decided September 16, 1953.
    Roger F. DiPaolo, Aurora, for administrator.
    George Morrison, Aurora, for cross-petitioner.
   OPINION

By DIETRICH, J.

The plaintiff, in this cause, as administrator of the estate of Steve Horvath, filed a petition to sell certain land belonging to his decedent in order to pay debts. To this petition, defendants Peter and Wilma Korda filed an answer and cross-petition.

In the cross-petition, these defendants allege that on June 8, 1928, plaintiff’s decedent and his wife, executed and delivered to them their promissory note in the amount of $2000. This note was payable in monthly instalments of fifteen dollars per month beginning July 1, 1928, with interest at seven per cent per annum, payable semi-annally. All payments made were to be credited on the first day of January and the first day of July of each year, first upon the interest for the previous six months and the balance, if any, upon the principal.

Upon hearing, counsel for the parties agreed that said note had been executed and delivered and that no payments were ever made to apply on either principal or interest. The parties further agreed that under Ohio law, all payments due on and previous to Jan. 1, 1938 were out-lawed by the Statute of Limitations (§11221 GC [§2305.06 R. C.]). The parties disagreed however as to the method of accounting that was to be applied and as to what payments and amounts did fall due after January 1, 1938.

The method of computation adhered to by the defendants can be shown best by an example. Taking the payments of the first six months amounting to $90; the defendants would apply $70 on the interest and $20 on the principal; thus leaving $1980 still due on the principal. Continuing this method of calculation each six months until Jan. 1, 1938, the defendants claim that all interest would be paid to that date; but that principal in the amount of $1472.86 would still be due on that date; and thus this amount would not be out-lawed.

The plaintiff contends that between July 1, 1928 and Jan. 1, 1938 there came due 114 payments of $15 each making a total of $1710; that when the principal payments were out-lawed, the interest due was also out-lawed; thus leaving only $290 plus the interest on this amount that could now be collected.

The difficulty with the defendants’ argument is that it is based on a situation that never existed. The court can not conjecture as to what might have been the situation if the makers of the note had made payments as required by the terms of the instrument. The fact is no payments were made and the owners of the note have allowed the matter to stand for twenty-five years without taking any action to protect their interest.

The matter becomes clearer if we consider what the situation was on January 1, 1938. The statute of limitations has relation to the remedy (Trustees v. Campbell, 16 Oh St 11, 16), and where a cause of action has accrued in favor of a person qualified to institute process, the statute has application. Suppose on January 1, 1938 the holders of the note had filed suit. For what amount could they have petitioned? Certainly they could have filed suit for all payments due up to that date plus accrued interest.

The court has found no Ohio decision on this matter but several other jurisdictions have held that where the obligor undertakes to pay interest semi-annually, the statute begins to run as to each installment of interest when it is due and the bar of the statute upon the right to recover the principal also bars the right to recover interest. The right to sue on periodic payments and the right to sue for interest due at the same time as those payments, expire together and there can be no theoretical application of payments which, actually, were never made. Yeadon v. Farmer’s Elevator (Iowa), 227 N. W., 709; May v. Ball, 108 Ky., 180; 56 N. W., 7; Porter’s Admx. v. Shattuck’s Estate, 75 Vt., 270; 54 Atl. 958. This is the general rule according to 34 Am. Jur. 315, Sec. 401. The only exception is in the case of a bond having separate interest coupons, which have been held to be individual contracts for the payment of interest.

Accordingly, the court finds that the defendants have an enforceable claim for principal payments of $290 due subsequent to January 1, 1938, plus interest to the time of payment at the rate specified in the instrument (Sec. 8304 GC [§1309.02 R. C.]). Further, as specified by Scattergood v. Ingram, 89 Oh St 460, the interest should be computed with semi-annual rests. The court finds the proper amount to be seven hundred sixty-nine dollars and eighty-three cents ($769.83) for which judgment is awarded the defendants on their cross-petition. Counsel will file a journal entry noting paper exceptions.


author: By the Court.

text:
    FLEMING, Plaintiff-Appellant, v. ROBINSON-HOUCHIN OPTICAL COMPANY et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4644.
    Decided September 5, 1951.
    Henry G. Binns, Columbus, for plaintiff-appellant.
    Jenkins, Schuessler, Wendt & Gill, Columbus, for defendants-appellees.
    Frank. C. Dunbar, Jr., Columbus, for Intervenor, Garrett Claypool, receiver-appellee.
   OPINION

By the Court.

This is a motion to dismiss the appeal on law and fact for the reason that the record discloses that no trial was had in the Common Pleas Court, citing the case of LeMaistre v. Clark, 142 Oh St 1, the syllabi of which provide:

“1. Under the provisions of Section 6, Article IV of the Constitution of Ohio the Courts of Appeals of this state have appellate jurisdiction in the trial of chancery cases.
“2. Such appellate jurisdiction does not authorize such courts to conduct a trial on issues of fact unless such a trial has been had in the court of first instance.
“3. It is not error for a Court of Appeals to dismiss an appeal on questions of law and fact and retain the appeal on questions of law alone when only a question of law has been decided by the court of first instance.”

The facts in the LeMaistre case reveal that the action was instituted by C. H. LeMaistre, administrator of the estate of Jonathan Warner, deceased; that at the conclusion of the case the trial court directed a verdict in favor of the defendant; that approximately three years thereafter the Court of Common Pleas permitted Clara Warner as administratrix de bonis non to be substituted as party plaintiff and to file' an amended petition in chancery. The defendant filed no answer but simply interposed a motion to strike the amended petition from the files and enter judgment in his favor on the ground that the disposition of the case three years previously was complete and final. This motion was granted by the Court of Common Pleas. The facts in the case at bar, however, differ in that an answer was filed setting up four separate and distinct defenses. A demurrer was filed to the third and fourth defenses which set forth facts which were found to constitute a good defense and the demurrer was overruled. The fourth defense of the answer set forth the plea of “laches,” which is predominantly an issue of fact to be resolved in each case according to its special circumstances. 16 O. Jur. 266, Section 109; Paschall v. Hinderer, 28 Oh St 568.

The question determined by the trial court was therefore not one of law but one of fact, just the reverse of the issue involved in the LeMaistre case, supra.

The motion will be overruled.

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


text:
    FLEMING, Plaintiff-Appellant, v. HOUCHIN et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4963.
    Decided August 24, 1953.

      'Henry G. Binns, Columbus, for Walter F. Fleming, plaintiff-appellant, Henry G. Binns and Thurman Corporation.
    Aubrey A. Wendt, Jenkins, Williams, Wendt, Murray & Deeg, Columbus, for Lowell L. Houchin, Erdis G. Robinson, Robinson-Houchin Optical Company, Robinson-Houchin Corporation, Robinson Houchin Optical Corporation, defendants-appellees.
    Gumble & Hofheimer, Columbus, for Receiver of Thurman Corporation, defendant-appellee.
    Thomas F. O’Shaughnessy, Columbus, for Executor of Estate of Lowell L. Houchin, deceased, defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of Irwin G. Stirgwolt, Receiver of The Thurman Corporation, one of the defendants-appellees, seeking an order dismissing the appeal for the reason that the same is not from an appealable order. The order is one relieving Henry G. Binns as counsel for the receiver and appointing new counsel. Counsel for the appellant urges, and properly so, that orders appointing and removing receivers are appealable orders. Citing, Forest City Investment Co. v. Haas, 110 Oh St 188, and Neighbors v. Thistle Down Co., 26 Oh Ap 324. But this order does neither of these but merely substitutes new counsel for the receiver. It in no manner adjudicates any of the issues in the case. It did not change the “status quo” of the proceedings or affect any substantial right of the litigants. The order does not meet the requirements of §12223-2 GC, for it affects no property or other substantial right but merely the administering of the receivership. The person removed is but an appointee of the Court and the only interest he could have under such appointment would be the compensation he might earn for services performed.

The motion will be sustained.

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


text:
    RADVANSKI, Plaintiff-Appellee, v. FISHER, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2187.
    Decided March 19, 1952.
    Floyd Koogler, Dayton, for plaintiff-appellee.
    D. H. Wysong, Dayton, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to require the defendant-appellant to give an additional bond, and to reduce the appeal from one of law and fact to an appeal on questions of law.

The original bond was in the amount of $300.00. The judgment and costs exceed that amount. The court orders defendant-appellant to give within ten days an additional bond in the amount of $200.00.

Plaintiff in his first cause of action prayed for the eviction of the defendant and in his second cause of action prayed for a money judgment for the use and occupancy of the premises. The Court gave plaintiff judgment on both causes of action. Obviously, an appeal on questions of law and fact cannot properly be taken, and the appeal is hereby reduced to an appeal on questions of1 law only. The defendant-appellant will be allowed to perfect his appeal on questions of law by filing a bill of exceptions, assignments of error and briefs within the time prescribed by supplement to Rule VII of this Court.

An entry may be drawn accordingly.

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


author: By RYAN, J.

text:
    FOPPE v. FOPPE et.
    Common Pleas Court, Hamilton County.
    No. A-126772.
    Decided October 31, 1951.
    Barbour, Kimpel & Allen, Cincinnati, for the plaintiff.
    Burke & Coney, Cincinnati, contra.
   OPINION

By RYAN, J.

This is an action for the partition of several parcels of real estate which the plaintiff and defendants inherited from their father, George Foppe, who died on July 5, 1950, leaving a Last Will and Testament which was duly admitted to probate and record by the Probate Court of this county.

Item VII of said Last Will and Testament, inter alia, provides as follows: “I give, devise and bequeath to my daughter Marie Foppe the right to reside in my residence where I now live, 58Í0 Madison Road, Cincinnati, Ohio, for a period of one year from my death without paying any rent for s.aid occupancy during that period.”

Item X provides: “All the rest, residue and remainder of my estate be it real, personal, or mixed, tangible or intangible, of every kind and description of whatsoever nature, wheresoever situate which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my children August W. Foppe, William A. Foppe, Bernard Foppe, Marie Foppe, Fred F. Foppe, Anna Jones and Agnes Abel, share and share alike, absolutely and in fee simple.”

This action was filed on May 1, 1951.

The defendants contend that the plaintiff did not have possession as to parcel 3 and therefore as to that parcel had no right to maintain this action.

It is contended by the plaintiff that Item VII does not prevent him from seeking partition; that Marie Foppe has nothing more than a mere right to occupy the residence for the period of one year free of the payment of rent.

Possession, or the immediate right to possession, is necessary in order to maintain a suit in partition.

Reibow v. McKerrow, 48 Oh Ap, 115, citing Lauer v. Green, 99 Oh St, 20, which holds that: “Syl. 1. The provisions of $12026 GC confer upon every tenant in common having possession or the right of possession of lands the right to compel partition of the same.

See also Hoffman v. Hoffman, 61 Oh Ap, 371, 15 O. O. 255 at page 374, wherein it is held that possession is an essential prerequisite to the right to partition.

On consideration of the question here presented and examination of authorities submitted, the court is of the opinion that the plaintiff did not have possession of Parcel 3 herein and that at the time of the filing of his petition he did not have the right to partition.

As to said Parcel 3, all plaintiff had was a right to the remainder after the expiration of the term granted to Marie Foppe under the Last Will and Testament of the father, George Foppe, and further that the grant was not limited merely to occupancy of the house as contended but included all the parcel used for residence purposes both land and building.

While the right of partition, either under the statute or in equity, should be liberally construed (Black v. Sylvania Oil Company, 105 Oh St, 346) the court cannot recognize such right where a testator has by the provisions of his will withheld possession, which has been held to be a prerequisite to the right of partition.

An entry may be presented in accordance herewith.