author: By LEACH, J.

text:
    FAIRFAX COMMUNITY ASSN., Plaintiff, v. BOUGHTON et, Defendants.
    Common Pleas Court, Franklin County.
    No. 191377.
    Decided January 7, 1955.

      Vorys, Sater, Seymour & Pease, Columbus, for plaintiff.
    Ingalls & Jones, Columbus, for defendants.
   OPINION

By LEACH, J.

This cause is now before the Court on plaintiff’s application for a temporary injunction and on defendants’ oral motion for judgment in their favor on the pleadings. Since the petition is the sole pleading, defendants’ motion raises the question of whether the petition states a cause of action.

Plaintiff is a corporation not for profit, its members being the resident property owners of Fairfax Subdivision, Perry Township, Franklin County, Ohio. Defendants are property owners in such subdivision and are in the process of constructing a home on their lot located therein. Plaintiff seeks to enjoin the construction of such building on the ground that defendants’ structure would violate certain “building regulations” of the plaintiff and on the ground that the defendants have not obtained the written consent of the plaintiff to such construction, plaintiff alleging that under the provisions of a certain restrictive covenant in defendants’ chain of title, and in the chain of title of all other property owners of this subdivision, is a requirement that written consent be obtained of the plaintiff before any structure be commenced, erected or maintained in this subdivision.

It appears that plaintiff was incorporated in 1928 for the purpose among other things, to fix and provide the terms, conditions, covenants, charges, restrictions and regulations upon, under and subject to which the real property and any portions thereof in the subdivision of Fairfax, Perry Township, Franklin County, Ohio should be acquired, held, used, possessed, occupied or disposed of, and to alter, amend, charge, add to, extend, waive or terminate in whole or in part, any such terms, conditions, covenants, charges, regulations or parts thereof.

After obtaining title to the land now comprising Fairfax Subdivision, plaintiff on July 28th, 1928, sold such subdivision to Fairfax Company. The deed by which such sale was made contained a restrictive covenant which in so far as pertinent to the issues here involved, read as follows:

“In pursuance of a general plan for the protection and benefit of all the property in said subdivision and of all persons who may now or hereafter become owners of any part of said subdivision and as a part of the consideration for this conveyance, grantee, for itself and its successors and assigns, does hereby covenant with grantor, its successors and assigns, to hold said real estate and each lot herein described upon the following terms and subject to the following conditions, restrictions, agreements, covenants, obligations and charges and fully and punctually to observe, comply with, perform and carry out the same, to-wit:
“1. No dwelling house costing less than $7,500.00 shall be built or maintained on any lot in said subdivision, except that, the minimum cost of house erected on Lots Numbers 93 to 107, both inclusive, shall be $5,000.00. No lot or any part thereof shall be used for any-other purpose than that of a dwelling place for a single private family and purposes necessarily Incidental thereto, nor shall any building, fence, wall or other structure be commenced, erected or maintained on said premises, nor shall any change, addition to or alteration therein be made which shall affect the outward appearance of the premises, without (in any and every such case) the written consent of Fairfax Community Association and then only in complete accordance with and conformity to the terms and conditions with respect thereto under which such consent is given. Before consent is given to the construction of any structure on any lot or part thereof the plans, specifications proposed location thereof and the grade of the first floor thereof, shall be first submitted to Fairfax Community Association for its approval. When any such plans, specifications, location and grade have been approved by Fairfax Community Association, a copy thereof as finally approved together with the terms and conditions under which such approval is given, shall be lodged permanently with Fairfax Community Association and thereupon a certificate of consent shall be delivered to the owner. No private garage shall be erected or maintained in connection with any dwelling house, except a private garage attached to or built as a part of such dwelling unless by consent first obtained in writing from Fair-fax Community Association and then only on such location and in accordance with such conditions as to cost, material, plan and architecture as sha.p be specified in such written consent.
“The foregoing provisions shall apply to each lot and part thereof, but shall not prevent the erection and maintenance of dwelling houses or other structures on any lot or part thereof, provided that consent of Fairfax Community Association be first obtained in the manner aforesaid.” (Emphasis ours.)

This deed also contained a provision that “Fairfax Community Association expressly reserves the right to annul, waive, change or modify the terms hereof with respect to any lot or part thereof * * * ”

Thereafter, plaintiff enacted and amended from time to time certain “building regulations.” A “building committee” also known as the “board of overseers” was elected by the membership of the plaintiff. This committee, consisting' of three men, was delegated the duty of checking and either rejecting or approving plans for constructions submitted to it. The by-laws of the plaintiff provide for an appeal to the Board of Trustees, also consisting of three men, by a property owner whose plans are rejected by the “building committee.” An appeal is also provided from the Board of Trustees to the full membership.

In April, 1953, by vote of the entire membership of the plaintiff, certain amended “building regulations” were adopted. Among other things, these regulations provided for a minimum inside floor area of one story homes of 1400 square feet.

It appears that defendants purchased their lot in July, 1954. It is clear that they had knowledge of the existence of the restrictive covenants in question and of the fact that they were required to submit building plans to the plaintiff. Defendants engaged the services of one Charles Bowers, a builder. Mr. Bowers submitted a plan to the building committee which called for the erection of a home with less than the floor area required. The building committee approved such plans on condition that certain changes be made including an increase in the floor area of 100 sq. feet by increasing the over-all length by four feet. The evidence clearly discloses that Mr. Bowers, either by direct statement or by inference, led the building committee to believe that the plan had been modified accordingly and after obtaining the necessary building permit from the City of Upper Arlington, began the construction of a home. Thereafter, it was discovered by actual measurement that construction was proceeding in accordance with the plans which called for an inside wall area of less than 1400 sq. feet.

This action was then commenced by the filing of plaintiff’s petition on December 11, 1954. A temporary restraining order was issued by the Court the same day and the cause set for hearing on December 15, 1954, on plaintiff’s application for a temporary injunction.

At the conclusion of the hearing of December 15, 1954, the temporary restraining order was continued with an increase in the bond from $200.00 to $3000.00. The Court at that time orally announced its finding that the defendants had begun construction with full knowledge of the fact that they were violating the “building regulations” of the plaintiff. Request was made, however, that the matter be briefed as to the enforceability of such “building regulations,” in view of the language of the restrictive covenant in question.

It is the claim of the defendants that under the language of the restrictive covenant the sole purpose of submitting plans to the plaintiff for its consent is to see that compliance has been had with the specific requirements of the restrictive covenant as to the cost of the dwelling house and the fact that it will be “for a single private family and purposes necessarily incidental thereto.” It appears to be the contention of the defendants (1) that the actual language employed in the restrictive covenant in question cannot be construed as intending to give to the plaintiff the authority to disapprove plans for construction except where such plans reveal that the home (a) will cost less than $7,500.00 or (b) will be used for purposes other than that of a dwelling for a single family purpose, and (2) that if the language in question would purport to authorize the plaintiff to disapprove plans for other reasons, such would be unenforceable as being so vague as to be against public policy and void.

In support of their contention, defendants cite and rely upon a decision of the Court of Appeals of Summit County, a decision of the Hamilton County Common Pleas Court and a decision of the Montgomery County Common Pleas Court; Exchange Realty Company v. Bird, 16 Abs 391; Finlaw v. Jacobs, 30 O. O. 7 and Kline v. Colberg, 56 Abs 395. Plaintiff contends that such cases are distinguishable and that in any event, this Court is bound by the decision of the Supreme Court of Ohio in Dixon v. The Van Sweringen Company, 131 Oh St 56, and by the decision of the Court of Appeals of this district in Smith v. Volk, 85 Oh Ap 337.

While certain language standing alone in the cases relied on by defendants would indicate a contrary conclusion, we are in agreement with plaintiff that such cases are distinguishable. In any event, we believe we are bound by the holding of the Supreme Court of Ohio in Dixon v. The Van Sweringen Company and believe that this view followed by the decisions of the highest appellate courts in other states is the sounder view of the problem presented.

The case of Dixon v. The Van Sweringen Company involved an action to quiet title brought by a property owner in Shaker Heights against the company which had originally owned the entire subdivision and which had placed the restrictive covenant in question into the chain of title of the plaintiff. Plaintiff specifically sought to invalidate three reservations in the covenant, one of which provided that the defendant had “the right to change or cancel any or all of these restrictions, if in its judgment the development or lack of development of adjacent property makes that course necessary or advisable.” The Court rejected the claim of plaintiff that such a provision was against public policy and therefore void. We quote from the opinion of Day, J., at page 69:

“Such judgment would have to be exercised reasonably, if the occasion should ever arise, and not in an arbitrary, captious manner, calculated to be obviously injurious to the rights of the lot owners in such allotment; and a court of equity would have power to protect rights affected thereby, if it should appear such authority was wrongfully exercised. We cannot see that the granting of such a right is necessarily against public policy, if parties wish to accept a deed containing such provision. The case of Hisey v. Eastminster Presbyterian Church, 130 Mo. App., 566, 109 S. W., 60, illustrates the power of a court equity to protect a grantee under a deed containing a clause authorizing a grantor to vary restrictions.”

The Court concluded that “Until some concrete case arises, showing that public policy has been violated, we see no reason for denying the right of these parties to contract between themselves * *

In concluding that a court of equity has the power to protect against an arbitrary or capricious exercise of power to vary restrictions, it appears that the Supreme Court necessarily concluded that a provision in a restrictive covenant purporting to give to one party unlimited power to vary such restrictions is not void as against public policy. Instead it appears that the property owner is fully protected by the protecting cloak of a Court of Equity if such power is attempted to be exercised in an arbitrary or capricious manner.

In the instant case, so far as it has proceeded to date, with the filing of the petition and testimony taken upon the issue of granting a temporary injunction, the issue whether the power purported vested in the plaintiff has been exercised in an arbitrary or capricious manner is not presented. The issue presented at this stage of the proceedings is simply one of whether the plaintiff has any authority to refuse to approve defendants’ building plans for reasons other than the $7500.00 cost requirement and the requirement of use as a single family private dwelling.

Where a restrictive covenant grants broad discretionary authority to approve or disapprove construction and maintenance of buildings, we believe it fundamental that such authority must be exercised within reasonable limits and within the framework of the purpose of such covenant. Here the purpose of the covenant “a general plan for the protection and benefit of all the property in such subdivision and of all persons who may now or hereafter become owners of any part of said subdivision” is spelled out in the covenant itself. The principle that a “general plan” must exist in order to avoid the necessary conclusion that otherwise the power could be exercised arbitrarily or capriciously, is well recognized. This does not mean, however, as we believe defendants contend, that the entire plan must be spelled out in specific detail in the covenant itself and that the covenant cannot delegate the power to enact or amend specific requirements to implement the “general plan.”

With these principles in mind, the cases of Exchange Realty Company v. Bird, Finlaw v. Jacobs and Kline v. Colberg become reconcilable with the holding of the Supreme Court in Dixon v. The Van Sweringen Company.

.We believe that such principle was recognized by the Court in the Exchange Realty Company case. We quote from the opinion of Funk, J., at page 394:

“While such a restrictive covenant in a deed requiring the submission to and approval by the grantor of all plans for the erection of a house is held to be a valid and enforceable covenant — 131 Atl. 446 (Md.), Jones v. N. W. Real Est. Co.; 106 Atl. 310 (Pa.), Harmon v. Burow, 36 L. R. A 393 (Md.), Peabody Heights Co. v. Willson, 158 N. E. 761 (Mass.), Parsons v. Duryea — it will be noted that such a covenant is always used in connection with some general plan or scheme or some other designated or stated restriction within which such approval may operate, or that the covenant regulates the scope of the approval; and the same is true in the instant case, as the restriction reads ‘no such house.’ The word ‘such’ presents the question, What house? and the answer evidently is that said word means the kind of a house provided for in the other designated restrictions. We find no decision or test to the effect that a covenant requiring the submission to and approval of plans by the grantor, standing alone, without any other restriction, is enforceable.” (Emphasis added.

As we interpret the Exchange Realty Company case, the court found no “general plan” to exist and also predicated much of its opinion on the peculiar language of the covenant in stating that “no such house” should be erected until plans were approved. We agree with the discussion of the Exchange Realty Company case by the California Supreme Court in the case of Hannula v. Hacienda Home Inc., 34 Cal. 2d, 442; 19 A. L. R. 1268. In the Hannula case, as here, the issue as to whether the act of rejecting plans had been done reasonably or unreasonably, was not presented. As here, the single issue was whether a restrictive covenant purporting to delegate “unlimited” power to approve or disapprove plans was void per se as being against public policy. The court discussed the Exchange Realty Company case in some detail and concluded that the opinion was predicated basically upon the use of the language “such house” and on the apparent belief of the court that the action of the Realty Company in question was arbitrary. It concluded that the broad language of the opinion “to the effect that standing alone the respective covenant requiring the approval of plans would leave the purchaser subject to the mere whim of the seller and would therefore be too indefinite to be enforced, ignores the decisions cited which hold that the power to - approve plans and site must not be exercised capriciously or arbitrarily.”

In so concluding, the California Supreme Court has restated the basic principle already determined by our Supreme Court in the case of Dixon v. The Van Sweringen Company.

From an examination of the opinion in the case of Finlaw v Jacobs, it likewise appears that no “general plan” was found. In the case of Kline v. Colberg, Crawford, J., specifically discussed the question of whether a “general scheme or plan” existed and concluded at page 300:

“What then was the general scheme or plan? Simply Colonel Grigg’s taste and judgment in a multitude of individual cases. However excellent his decisions may have been, they could hardly create a demonstrable general plan. And such result could scarcely be attained unless he were actually to design or prescribe the design for each house. The only thing that was concretely uniform was the practice of submission and approval of plans as specified in the deeds and agreement.”

The Court of Appeals of this district in Smith v. Volk held that restrictions which permit the erection of a single residence which is required to conform to adjoining property with respect to setback and exterior design, and which require the plans to be prepared by an architect of known ability and submitted to the alioter for his approval are sufficient to put a purchaser on inquiry regarding a building plan and scheme for improvement of the entire tract. While the basic question there involved was whether there was mutuality in the restrictions by corresponding covenants in the deed of each grantee, it does appear that the Court gave at least tacit approval to a covenant delegating broad power of approval or rejection of plans.

As contrasted with the language of the covenant under consideration in the Exchange Realty Company case, it of course will be noted that the language here under consideration forbids any building, fence, wall or other structure being commenced, erected or maintained without the written consent of the plaintiff and also forbids any change, addition to or alteration therein which shall affect the outward appearances of the premises. To construe the requirement of approval as being limited to an approval relative to the $7,500 minimum cost and relative to its use as a single family dwelling, would give absolutely no force and effect to the requirement that approval be had as to the erection of a fence, the erection of a wall and as to any change, addition to or alteration affecting the outward appearance of the premises. We conclude therefore that the restrictive covenant in question was intended to grant broad discretionary authority to the plaintiff. As heretofore stated, such authority must be exercised reasonably and not arbitrarily or capriciously and in accordance with a “general plan.” The evidence and the pleadings indicate that such a “general plan” exists. As heretofore stated, the issue of whether the application of this “general plan” to the building of defendants is so unreasonable as to be arbitrary and capricious, is not involved at this time.

Defendants’ oral motion for judgment in their favor on the pleadings may be overruled. Plaintiff’s application for a temporary injunction is granted. The bond in the amount of $3000.00 heretofore posted, under the temporary restraining order may be continued as the bond on this temporary injunction. An entry may be prepared accordingly.


source: Caselaw Access Project

author: By MILLER, J.

license: Public Domain

text:
    ASSAD, d. b. a. NAN’S CAFE, Appellant, v. STATE DEPARTMENT OF LIQUOR CONTROL, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4746.
    Decided June 2, 1952.
    H. David Lefkowitz, Marvin L. Gardner, Edward N. Koppelman, Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., Brown W. Pettit, Asst. Atty. Geni., Columbus, for appellees.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Court of Common Pleas sustaining the motion to vacate its judgment of June 29,1951, which affirmed an order of the Board of Liquor Control revoking the appellant’s D-l and D-2 liquor permits. The applicable provisions of the order appealed from are the following:

“The Court upon further consideration finds that appellant, subsequent to the Board’s order but prior to the Court’s decision, has been declared a bankrupt; that the permits herein involved became a part of the bankrupt estate, and that the only ones to suffer by the Board’s order of revocation would be the creditors.
“The Court, therefore, sua sponte, orders, adjudges and decrees that the order of the Board of Liquor Control, revoking appellant’s D-l and D-2 liquor permits, be and the same hereby is reversed; that the restraining order hereinbefore issued be vacated; and that the appeal be dismissed at appellees’ costs. To all of which the appellees except.”

The question here presented is whether the bankruptcy of the permit holder subsequent to the revocation of the permit is a sufficient reason for the reversing of the order of the Liquor Board upon the application of the trustee in bankruptcy. An examination of the record reveals that the case was submitted to the Common Pleas Court solely upon the record made in the hearing before the Liquor Board. Since the adjudication in bankruptcy was made after the order of revocation it becomes apparent that it is foreign to the record. All of counsel admit that the record supports the Board’s order, but counsel for the trustee in bankruptcy urges that should the order appealed from be reversed, the only sufferers would be the creditors of the bankrupt estate rather than the alleged wrongdoer, Mary Assad. This may well be true but the Common Pleas Court had no jurisdiction to try the case de novo. Farrand v. Medical Board, 151 Oh St 222. Since the case was submitted on the record made before the Board its judgment must stand or fall upon that record. Matters happening after the trial cannot be considered as newly discovered evidence on which to justify granting a new trial. Hutt v. Young, et al., 47 Oh Ap 390.

In the case of State, ex rel. v. O’Brien, 130 Oh St 23, in considering the revocation of a liquor permit the Court said at page 27: been applied to fishing licenses: State v. Pulsifer. 129 Me., 563, 152 A., 711; State v. Cote, 122 Me., 450, 120 A., 538; to boxing licenses: State, ex rel. Orleans Athletic Club, v. Louisiana State Boxing Commission. 163 La., 418. 112 So.. 31; to soft drink licenses: Appeal of Bornstein, 126 Me., 532, 140 A., 194; to milk licenses: People, ex rel. Lodes, v. Dept. of Health, 189 N. Y., 187, 82 N. E., 187; to hack or carrier licenses: Sylvania Busses, Inc., v. City of Toledo, 118 Oh St 187, 160 N. E., 674; Burges v. Mayor and Aldermen of Brockton, 235 Mass., 95, 126 N. E., 456; Child v. Bemus, 17 R. I., 230, 21 A., 539; to pool table licenses: Commonwealth v Kingsley, 133 Mass., 578; and to teachers’ licenses: Stone. Supt., v. Fritts. 169 Ind., 361, 82 N. E., 792, 15 L. R. A. (N. S.), 1147. As appears in these cases, the rule in many states is that such revocation may take place without notice or hearing, unless, of course, the statute provides otherwise.”

“It follows that if the permit is terminated in a lawful manner under the provisions of the act creating it, the licensee cannot complain as his license to operate was issued to him subject to that contingency. The holdings are uniformly to the effect that such a license does not create a property right within the constitutional meaning of that term, nor even a contract, and that it constitutes a mere permission to engage in the liquor business, which may be revoked in the prescribed legislative manner. La Croix v. County Commissioners, 49 Conn., 591. 50 Conn., 321; Sprayberry v. City of Atlanta, 87 Ga., 120. 13 S. E., 197; Martin v. State, 23 Neb., 371, 36 N. W., 554; Metropolitan Board of Excise v. Barrie, 34 N. Y., 657; Gubin v. City of New York, 150 Misc., 182, 269 N. Y. S., 46; People, ex rel. Reuther, v. Sisson, 101 Misc., 429, 167 N. Y. S., 134. Practically the same rule has

We find that the permits involved herein were revoked in the manner prescribed by statute.

It may be further noted that a trustee in bankruptcy, duly appointed and qualified, becomes vested by operation of law with the title of the bankrupt as of the date of adjudication. U. S. C. Title 11, Par. 110. In the case at bar the bankrupt had no permit on the date of the adjudication the same having been revoked several weeks prior thereto. Therefore, even conceding these permits to have property rights the trustee in bankruptcy could have been vested with no interest in the same.

The judgment will be reversed and the order of the Liquor Board affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By EARHART, J.

text:
    CABLE, Plaintiff, v. CABLE, Defendant.
    Common Pleas Court, Lawrence County.
    No. 34354.
    Decided March 3, 1955
    James B. Collier, Ironton, for plaintiff.
    Harold D. Spears, Ironton, for defendant.
   OPINION

By EARHART, J.

This case is before the Court on a demurrer filed herein by the defendant to the plaintiff’s petition. The grounds for demurrer are that it appears upon the face of the petition that the facts therein contained do not constitute a cause of action in favor of the plaintiff and against the defendant, and that it appears upon the face of the petition that the Court has no jurisdiction of the subject of this action.

The petition of the plaintiff alleges that the plaintiff, John R. Cable is the father of Thomas Lewis Cable, age five years and David Canter Cable, age three years; that said • children were born in lawful wedlock and that the defendant herein is the mother of said children.

Plaintiff alleges that the plaintiff is and has been contributing the sum of $75.00 per month toward the support of his children; that the defendant, who now has custody of said children, refused to permit the plaintiff to visit with said children or to see them, although he has requested her numerous and sundry times for said visitation privileges. Plaintiff further says that both he and defendant are and have been bona fide residents of Lawrence County, Ohio, and that the children are also bona fide residents of Lawrence County, Ohio.

The prayer of the petition asks that the plaintiff be granted reasonable visitation rights with his aforesaid children, and for such other relief as is just and proper.

It is to this petition that the defendant demurs. It is the contention of the defendant that this Court has no jurisdiction to grant visitation rights because the plaintiff is not asking for a divorce, separation or any relief which would give this court jurisdiction.

It should be noted in this case that there is no divorce action pending in this Court, nor has there been any divorce granted in the past in this Court. The petition alleges that the plaintiff is contributing the sum of $75.00 per month for support, but does not allege whether this arose out of a divorce action in another jurisdiction or is by agreement of the parties.

The question presented is whether or not the Court may grant visitation rights to a parent of the minor children of said parties where there is no divorce action pending, and where the only prayer in the petition is for visitation rights.

The Court is of the opinion that the demurrer of the defendant to the plaintiff’s petition should be, sustained. There is no authority in the Statute for the Court to grant visitation rights unless jurisdiction is obtained in a divorce case or a suit for alimony, neither of which is asked in this case. The plaintiff, in effect, is asking that the Court exercise equity powers to grant him visitation rights with his own children. This Court has no jurisdiction to make any order respecting the care and custody or visitation with minor children unless in the prayer, of the petition the plaintiff asks for a divorce or alimony.

Sec. 3105.21 R. C., provides as follows:

“Upon satisfactory proof of any of the charges in the petition for divorce or for alimony, the Court of Common Pleas shall make such order for the disposition, care and maintenance of the children of the marriage as is just and in accordance with §3109.04 R. C.”

Sec. 3109.04 R. C. concerns the custody of the minor children of parents but it should be noted that the plaintiff is not asking for custody. He is asking merely for visitation rights.

It is my opinion from an examination of the Statutes and such authorities as I find that the Court has no jurisdiction in the absence of a prayer for divorce and alimony to grant visitation rights. This can only be done where the petition of the plaintiff prays for a divorce or alimony and cannot be done in this case. Furthermore, there is no allegation in the petition that the parties are married, and the Court of course, on a demurrer is bound by the allegations contained in the petition.

It is therefore ordered that the demurrer of the defendant to the plaintiff’s petition be and it is hereby sustained. An entry may be prepared accordingly.


author: By DOYLE, J.

text:
    CITY COAL AND SUPPLY COMPANY, Plaintiff, v. AMERICAN AUTOMOBILE INSURANCE CO., and AMERICAN AUTOMOBILE FIRE INSURANCE COMPANY, Defendants.
    Common Pleas Court, Mahoning County.
    No. 136824.
    Decided February 25, 1954.

      Nadler & Nadler, Youngstown, for plaintiff.
    Oscar A. Stephens, Youngstown, for defendant.
   OPINION

By DOYLE, J.

Defendants issued a policy of insurance to plaintiff indemnifying it against certain losses named in the policy (exclusive of “Collision” and “Upset”).

Plaintiff was the owner of a certain truck insured against losses covered by the policy, and was in process of delivering mixed cement to a cellar excavation in the City of Youngstown. The truck was in charge of plaintiff’s driver, and was backed to a point approximately three feet from the edge of the cellar excavation.

The truck engine was stopped and the driver was on the step of the truck preparatory to dismounting when the earth at the edge of the excavation crumbled, precipitating the rear of the truck to the ground level of the excavation with the center of the truck resting on the edge of the excavation and the front wheels suspended from seventeen inches to two feet above the ground level at the approximate edge of the excavation.

Claim for loss was presented by plaintiff to defendants and payment refused. Suit filed, jury waived: trial to Court.

The question presented to this Court is whether the precipitation of the truck constituted “collision” and “upset.” If it did, there could be no recovery under the terms of the policy — the policy excluded coverage for “collision” and “upset.”

The Court is of the opinion that the precipitation of the truck to the ground floor of the excavation did not constitute a collision or upset.

The situation in this case is unusual, and a search of Ohio cases has not disclosed a ruling which seems to apply to the facts in this case It has therefore been necessary to examine the law pronounced by courts of sister states.

In addition to the authorities cited by counsel, the Court has examined a large number of other authorities.

An “accident” has been defined by various dictionaries as being an “event occurring without one’s foresight or expectation.”

“Collision” has been defined as an “unforseen accidental impact with any kind of object — the sudden contact of a moving body with an object in its line of motion.” The cases are not uniform, however, as to whether it is necessary for the object to be in motion.

“Upset,” as defined by Funk and Wagnalls Dictionary, is “to overturn, as to upset an ink-stand or boat.” Webster’s International Dictionary, Second Edition, describes an “upset” as “being to overturn, overthrow or capsize, as to upset a carriage.”

The basic rule as to insurance policies is that they are to be construed most strictly against persons or companies drafting and issuing the policies; also that in order to accomplish justice under a sensible interpretation of the law, the definition of “collision” or “upset” should not be given a strained construction.

In the instant case, the truck was stationary, with the engine ignition turned off and the truck wheels and body of the truck completely stationary. No part of the truck was in motion.

A majority of the cases bearing on the subject of “collision” or “upset” relate to vehicles in motion, a large number of them involving highway accidents or occurring in the process of moving from one place to another. In a number of the cases it has been held that a truck running off the roadway and off the berm, dropping the truck to the axle and spilling part of the contents of the truck, constituted a collision and upset. There are other variations of this situation in which the same ruling was made. Other cases hold to the contrary.

In the case of Bell v. American Insurance Company, 173 Wise. 533—181 N. W. 733, the dictionary definition of collision is criticized and the discussion in that case is interesting as bearing on the question in the case, although it is too lengthy to justify inclusion in this memorandum. The observation, however, is made in that case: “We do not speak of falling bodies as ‘colliding’ with the earth. So with all falling bodies. We speak of the descent as a ‘fall,’ not a collision. A collision does not result from the force of gravity alone.”

That reasoning has been followed in several other cases.

This Court is of the opinion that in determining this question, it is necessary, at least in this case, to consider the definitions of both “collision” and “upset.” If it was a collision and if it was an upset, the upset occurred as a direct result of the collision.

To discuss all of the various cases which the Court has examined independently would make this memorandum more lengthy than would be justified; and references to special cases and definitions is being made to a very limited extent, merely to direct attention to the reasoning followed in various cases which will be cited in this memorandum.

One case that is worthy of attention is Dougherty v. Insurance Company, 19 Penn’a Dist. 547—38 Penn’a C. O. 119, in which it was held that driving an automobile into a hole was not a collision,' and to hold otherwise would be contrary to the plain, ordinary and popular sense that is used by those who drive automobiles.

In the instant case, the truck was stationed at a point which the driver apparently thought was safe, preparatory to beginning to unload the cement. The truck ignition was turned off and the truck was not in motion. The precipitation of the truck to the floor of the cellar excavation was in no sense a collision under any common sense definition. It was a falling in substantially the same manner that any object would fall to the ground. If it can be said that there was an upset and a collision, it seems to this Court that such a conclusion could only be reached by a course of strained reasoning that is not justified under the facts presented here

Assuming that this case will be presented to reviewing courts for final determination, the Court directs the attention of counsel to the following list of authorities relating to the questions presented here:

Insurance Law and Pracice—Appleman, Vol. 5, Page 340, Section 1302, 23 A. L. R., page 397, Vol. 8, A. L. R.; Aetna Casualty v. Cartmel, 100 Southern 802 (Sup. Ct. Florida); Mercury Insurance Co. v. McClellan (Supreme Court of Ark., 225 S. W. 2nd, 931); Great American Mutual Ins. Co. v. Jones, 111 Oh St 84; Ferguson v. Farm Bureau, Supreme Ct., Kansas, 237 Pacific 2nd 234; Radella v. Bankers Mutual Fire Ins. Co. of Lancaster, Superior Court Penn’a., 70 Atlantic 407; Proffitt v. Provident Washington Ins. Co., Court of Civil Appeals of Texas, 234 Southwestern 2nd 894; Jack v Standard Marine Insurance, Supreme Court, Washington, 205 Pacific 2nd 251; Guarantee Trust Co. v. Continental Life Ins. Co., 115 Washington 683—294 Pacific 585, 587; Granger v. New Jersey Insurance Co., 108 California Appeal 290-291 Pacific 608; Ingalls, Inc., v. Hartford Fire Insurance Company, 137 California Appeals 741, 31 Pacific 2nd 414, 416; New Jersey Insurance Co. v. Young, C. C. A. Montana, 290 Federal 155; Wetherill v. Williamsburg Fire Ins. Co., 60 Penn’a Superior Court 37; Haik v. U. S. F. & G., 130 Southern 118, 15 Louisiana Appeals 97; Harris v. American Casualty Co. of Reading, Pa., 85 Atlantic 194, 83 New Jersey L641—44 L. R. A. New Series 70; Tinker v. Boston Insurance Co. of America of Boston, Mass.—233 Pacific 1058—106 Oklahoma 206; St. Paul Fire and Marine Ins. Co. v. American Compounding Co.—211 Alabama 593, 35 A. L. R. 1018, 5 American Jurisprudence; Moore v. Western Assurance Co. of Toronto. Canada, 186 S. C. 260195 S. E. 558; Orlando v. Manhattan Fire and Marine Ins. Co., 42 N. Y. Supreme, 228, 266 Appellant Division New York 319; Long v. Royal Insurance Co., 180 Washington 360, 46 Pacific 2nd 132, Words and Phrases.

Some of the foregoing listed authorities seem to hold contrary to the opinion of this Court, but for the reasons stated in this memorandum, this Court is of the opinion that the accident which occurred as stated in -the Petition filed in this action, did not constitute a collision or upset, and the Court so finds.

The Court is of the opinion, also, that plaintiff should recover for the money which it was compelled to expend to’ extricate the truck from the excavation.

Decision is therefore in favor of the plaintiff against both defendants, and judgment is rendered in favor of plaintiff against both defendants in the sum prayed for in plaintiff’s Petition.

Journal entry may be drawn in accordance with this memorandum.


author: By CASE, J.

text:
    GILMORE, Plaintiff, v. HENTHORNE, Defendant.
    Common Pleas Court, Fayette County.
    No. 21795.
    Decided March 11, 1955.
    Reed M. Winegardner, Washington C. H., for plaintiff.
    Junk & Junk, Washington C. H., for defendant.
   OPINION

By CASE, J.

This cause comes before the court upon Defendant’s demurrer to Plaintiff’s petition herein.

Plaintiff’s petition reads as follows:

“Plaintiff, Elizabeth E. Gilmore, for her cause of action against the defendant. Marguerite Henthorne, says she was married to Leo J. Gilmore, on or about February 1, 1937, at Washington C. H., Ohio, and ever since has been and is now the lawful wife of said Leo J. Gilmore, and that there has been born, as the issue of said marriage, four children, Barbara Lou Gilmore, age 16; Helen Jean Gilmore, age 10; Diania Lee Gilmore, age 7; and Larry David Gilmore, age 3 years.
“Plaintiff further says that she and her said husband have always lived together as husband and wife, in peace, happiness and contentment and that said defendant, Marguerite Henthorne, well knowing said conditions to exist, did, approximately two years ago and at various times and places, both prior and subsequent thereto, wrongfully, unlawfully and maliciously, by her machinations, enticements, favors, attentions, affections and seductive influence, induce plaintiff’s said husband to become dissatisfied with plaintiff and his married life and has so influenced the said Leo J. Gilmore, plaintiff’s said husband, that he has left and abandoned plaintiff, much of the time during the past two years and completely since April 28. 1954.
“Plaintiff further says that by reason of the wrongful, unlawful, malicious and intentional conduct of the defendant, the affections of her said husband have been alienated by the defendant and that she has been deprived of adequate support by and the companionship, love, affection, consortium and attention, due her, by her said husband, all to her damage in the sum of Twenty Five Thousand ($25,000.00) Dollars.
“WHEREFORE, plaintiff prays for a judgment against the defendant in the sum of Twenty Five Thousand ($25,000.00) Dollars and the costs of this action.”

To the aforesaid petition, Defendant filed the following demurrer and memorandum in support thereof:

“The defendant demurs to the petition herein and for grounds thereof says that it appears upon the face of the petition that the facts therein contained do not constitute a cause of action in favor of plaintiff and against this defendant.
“MEMORANDUM IN SUPPORT OF DEFENDANT’S DEMURRER
“Sec. 2309.08 R. C.
“Arlington P. Mead v. Rhonda H. Hoskins, et al., Volume 8 Ohio Decisions, page 342 states:
“ ‘In all the cases of this kind of action.....it is necessary and seems to be the requirement that there should be some act or some thing pleaded on the part of the plaintiff that makes the malicious action. In this petition there is nothing of that kind. It says simply: “conspiring together and maliciously contriving and intending to injure plaintiff and to destroy his peace and happiness and to deprive him of the comfort, society and services of his said wife, did soiely because of their malice and ill will toward plaintiff, induce and persuade his said wife to leave and separate from him.” Those acts may have been lawful enough. They may have been advised or something of that kind. Now, in this case it turns out from what the court states afterwards that when the mother of Irena Dick went to visit her she persuaded her to stay away from Dick, and threatened to disinherit her if she did not, which I suppose is the gravamen of the charge. But this petition only states in those respects either conclusions of fact or law, and does not set forth any wrongful act on the part of these defendants, and, I think for that reason the demurrer ought to be sustained. The acts, or facts, ought to be alleged so that the defendants may know what is intended to be charged as the action that constitutes the wrong.’
“Applying the above law to the instant case, defendant contends that plaintiff does not state facts constituting a cause of action in as much as her petition only states conclusions of facts such as machinations, enticements and conclusions of law such as maliciously, unlawfully etc. For these reasons the defendant maintains that the demurrer should be sustained.”

The flies and records in this cause fail to show that any memorandum contra said demurrer has been filed on behalf of Plaintiff.

The pertinent provisions of §2309.08 R. C., referred to and cited by Defendant’s memorandum in support of her demurrer, reads as follows:

“The defendant may demur to the petition only when it appears on its face that:
“(J) The petition does not state facts which show a cause of action.”

In support of her demurrer, Defendant’s memorandum also cites Mead v. Hoskins, et al., 8 O. D. 342, decided by the Common Pleas Court of Licking County in 1898, which, according to the headnotes thereto, held:

“1. Petition must set Forth Acts Constituting Gravamen of the Charge.
“In an action by a husband for damages for the loss of his wife’s consortium it is necessary that the petition should set forth the acts or facts which constitute the wrong or malicious action, or gravamen of the charge.
“2. Petition Alleging Conclusions Merely, Demurrable.
“A petition alleging, in substance, that defendants, consipiring together and maliciously contriving and intending to injure plaintiff and to destroy his peace and happiness and to injure and deprive him of the comfort, society and services of his wife, induced and persuaded her to leave and separate from him, simply states conclusions and is, therefore, demurrable.”

In arriving at his decision on the demurrer in the Mead case, supra, Judge Jones assumed that the petition was based on Holtz v. Dick, 42 Oh St 23, and admitted that the decision in the Holtz case “does not give the netition” (8 O. D. 343). The Holtz case and the Mead case were based upon an action against parents of a married woman for inducing the plaintiff’s wife to abandon him. Judgment against the defendants in the Holtz case was affirmed by the Supreme Court which held in part as follows:

“1. While the parents of a married woman are not liable in damages where they have encouraged her to separate from her husband and supported her in such separation, in the honest belief that it was necessary for her protection, the appearances seeming to indicate such necessity, although in fact there was no ground for separation and no actual necessity for protection; yet where the motive is not protection to the wife, but malice and ill-will toward the husband, an action may be maintained.
“3. Where the parties to a marriage in this state arrive at the common law age of consent, and also arrive at a period when they are man and woman, the parents have no authority to compel a separation in opposition to the wishes and interest of the husband and wife, on the ground that such wife had not, at the time of the marriage, arrived at the age of sixteen years, and that the marriage was without the parents consent; and where such separation is caused by her parents, not for her protection, but solely to gratify their feelings of ill-will and hatred toward her husband, he may maintain an action for the injury.
“4. On the trial of an action against husband and wife, for inducing the plaintiff’s wife to abandon him. in which the illegal acts are charged to have been done by the female defendant, evidence of her acts is competent, even if such acts were unknown to the husband and he had not encouraged her to commit them; and if a cause of action is proved, both are liable.”

Thus it appears that the Holtz and Mead cases were similar with respect to the relationship of parties plaintiff and defendant and principles of law applicable to matters of proof competent to establish liability on the part of defendant parents. It is also clear that the Holtz case did not determine any matter with respect to the sufficiency of the allegations contained in the petition as against demurrer.

In Chapter 32, American Law Institute, Restatement of the Law of Torts, Marriage Relation, Section 686, the following rule is stated:

“One who alienates the affections of a married woman or induces her to separate from, or, if separated, not to return to her husband, is not liable to the husband if the actor
“(a) is a parent or near relative or is otherwise in a relation with her which justifies the giving of advise in personal matters, or is one who acts reasonably in response to a request from the wife for advice, and
“(b) acts primarily to advance what he reasonably believes to be her welfare, and
“(c) makes no false statements not reasonably believed by him to be true, and employs no means in themselves unlawful.”

These pronouncements are consistent with paragraph one of the syllabus quoted above from the Holtz case, supra, and appear to have been fully considered in the thinking of Judge Jones in the Mead case, supra, as reflected by his statements on page 343 thereof as follows:

“* * * Those acts may have been lawful enough. They may have been advised, or something of that kind. * * * But this petition only states in those respects either conclusions of fact or law, and does not set forth any wrongful act on the part of these defendants, * * *” The acts, or facts, ought to be alleged so that the defendants may know what is intended to be charged as the action that constitutes the wrong.”

In other words, Judge Jones appeared to be fully aware of the “privilege” between parents and child in such actions and the distinctive allegations peculiar to and essentially required for the sufficiency of a petition to state such a cause of action against the parents where malicious conspiracy is charged as the basis of the action. Since Judge Jones’ decision was rendered twenty years after the Supreme Court decided the case of Westlake v. Westlake, 34 Oh St 621, it might well be that he was equally aware of the particularity with which Plaintiff’s petition therein set forth her complaint against her husband’s parents for the loss of the society and companionship of her husband and for wrongfully inducing and procuring her husband to abandon or send her away, as reproduced and quoted on pages 621 to and including 624.

One of the issues before the Supreme Court in the Westake case, supra, was: “1. That the petition does not state facts sufficient to constitute a cause of action.” (Page 624.) At page 634 thereof, the court stated: “A majority of the court are of the opinion that there is a good cause of action stated in the petition.” However, the lower court judgment for the plaintiff was reversed and the cause remanded to the court of common pleas for a new trial on other grounds pertaining to the competency of certain evidence and for error in the lower court’s charge.

Therefore, it becomes apparent that the defendants’ demurrer in the Mead case, supra, was considered simply upon the sufficiency of plaintiff’s allegation, to-wit:

“ ‘The said defendants, sometime prior to the said fifth day of February, 1894, conspiring together and maliciously' contriving and intending to injure plaintiff, and to destroy his peace and happiness and to deprive him of the comfort, society and services of his said wife, did, solely because of their malice and illwill toward plaintiff, induce and persuade his said wife to leave and separate from him, and to go to her mother’s home, where she has since resided, under the control and improper influence of said defendants.’ ” (8 O. D. 342.)

Such allegations were found to be insufficient upon demurrer thereto in the iight of the established principle of “privilege” between parents and their married child, as hereinabove discussed and referred to.

On the other hand, the instant case at bar is not subject to the general rule of “privilege” hereinbefore discussed and referred to. No family relationship is alleged or appears to be involved with respect to Defendant and Plaintiff’s husband. Therefore the general rules applicable to interference with the marriage relation so complained of might be paraphrased and stated as follows:

“One, who, without a privilege to do so, purposely alienates a husband’s affections from his wife, is liable for the harm thereby caused to any of her legally protected marital interests.
“One, who. without a privilege to do so and for the purpose of disrupting the marriage relation, induces a husband to separate from his wife or not to return to her after he has separated from her, is liable to the wife for the harm thereby caused to any of her .legally protected marital interests.” (See Stefancik v. Kuhns, 44 O. O. 288, 58 Abs 400, 96 N. E 2d 318.)

To do an act purposely implies an act of the will, an intention, a design to do the act. Purposely means designedly and knowingly with intent on the part of the actor.

By her demurrer herein filed. Defendant contends that Plaintiff “does not state facts constituting a cause of action in as much as her petition only states conclusions of facts such as machinations, enticements and conclusions of law such as maliciously, unlawfully etc.”

Webster’s New International Dictionary (1950) defines “machination” as “1. Act of machinating. 2. That which is devised; a device; a hostile or treacherous scheme; an artful design or plot.” It also defines enticement as “1. Incitement or that which encites. 2 An enticing; also, that by which one is enticed. Syn.—Allurement, attraction, temptation, seduction, enveiglement, persuasion, inducement.”

Condensing Plaintiff’s petition and giving it every reasonable inference, from the facts alleged, it clearly avers and charges in substance that Defendant, with knowledge of Plaintiff’s marital interest and rights, knowingly and with artful design disrupted the marriage relation by various acts and conduct consisting of enticements, favors, attentions, affections and seductive influence for over a period of two years prior to the filing of Plaintiff’s petition; and that, through such acts and conduct. Defendant alienated the husband’s affections from Plaintiff and deprived Plaintiff of her marital rights to the support, companionship, love, affection, consortium and attention of her husband.

It is equally clear that Plaintiff’s petition alleges that the acts so complained of were wrongful, unlawful, malicious and intentional, and that these averments would appear to be conclusions of fact or law not admitted by demurrer. However, there is a paucity of adjudication in Ohio upon the question presented. It is generally true that conclusions of law are not sufficient against demurrer, but the averments of knowledge and intention are, mixed conclusions of law and fact or of fact alone, and in many instances it is considered to be adequate and sufficient pleading, (See: Kaiser v. Rodenbaugh, 33 O. O. 196, 68 N. E. 2d 239; Landis v. Condon, 95 Oh Ap 28, 52 O. O. 371, 66 Abs 193, 116 N. E. 2d 602.)

In the case of Gugle v. Loeser, 143 Oh St 362, 39 Abs 173, 28 O. O. 318, 55 N. E. 2d 580, our Supreme Court pronounced the following principles of law:

“3. The rules of the Code of Civil Procedure require a liberal construction of a petition favorable to the pleader.
“4. For the purpose of testing the legal sufficiency of a petition upon demurrer, a court must indulge every reasonable inference, from the facts alleged, to sustain the petition.”

Applying these rules to Plaintiff’s petition herein, it appears that the facts therein contained constitute a cause of action, in favor of Plaintiff and against Defendant, sufficient to advise and inform Defendant of the wrong charged and complained of. What the evidence may develop at the time of trial is another matter and is of no present concern. And, with respect to Plaintiff’s averments that the acts complained of were maliciously and unlawfully accomplished, we must give due consideration to that portion of the decision in Booth v. Krouse, 78 Oh Ap 461, 45 Abs 43, 34 O. O. 189, 62 N. E. 2d 89, wherein our Court of Appeals held:

“3. Legal malice may be assumed in an action for alienation of affections where it appears that by reason of the acts of the defendant the affections of the spouse were alienated from the plaintiff.”

Having determined that Mead v. Hoskins, 8 O. D. 342, is distinguishable, for the reasons and upon the grounds hereinabove stated and discussed, it must necessarily ‘ follow that the Mead case is not controlling upon the questions raised by demurrer to the petition herein.

Therefore, upon the authorities above cited and for the reasons herein discussed and set forth, the court finds that Defendant’s demurrer is not well made and should be overruled.

The court further finds that counsel for Plaintiff should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Defendant and thereupon submit same to counsel for Defendant and to this court for approval within five days.


author: By BIRRELL. J.

text:
    EISAMAN, Plaintiff, v. WEIMER, Defendant.
    Common Pleas Court, Trumbull County.
    Nos. 63022, 63023.
    Decided March 30, 1954.

      Hoppe. Day & Ford, James Frey, Warren, for plaintiff.
    Luchette & Hoffman, James Hoffman, Masury, for defendant.
   OPINION

By BIRRELL. J.

Demurrer has been interposed to the following interrogatories attached to the Pleadings in each of the above named related cases.

1. Give the name of the doctor or doctors who have treated Plaintiff’s injuries.

2. Give the amount or amounts of said doctor’s bills respectively.

3. What is the amount of the Sharon General Hospital bill for Plaintiff’s treatment and care for the injuries Plaintiff alleges to have received from this accident.

4. Give the name of the nurse or nurses employed in Plaintiff’s treatment.

In order to rule properly on this Demurrer it is necessary to consider the extent to which Interrogatories may go, because of the comparatively sudden rush to use this method of securing information. The guiding principle of course is whether the information requested is “pertinent to the issue made in the pleadings.” §2309.43 R. C. (§11348 GC), which statutory phrase appears self-explanatory.

The power to order the production of certain evidence before trial has been discussed in a line of cases beginning as early, at least, as Ex Parte Jennings, 60 Oh St 319, which case was discussed and amplified at Ex Parte Schoepf, 74 Oh St 1. The ruling of these cases on Depositions is referred to and more recently approved in:

In re Hyde, 149 Oh St 407; In re Keeugh, 151 Oh St 307; In re Shoup, 154 Oh St 221 and In re Tichy, 161 Oh St 104.

This line of cases distinguishes between “record (s) kept for general purposes and containing information which is relevant, competent and material” to the participation of a party and of its employees or agents in the collision alleged to constitute the cause of action, and the reports which are made of an accident and “come into existence as a result of and concerning the accident” and which are turned over to the legal Counsel. The former are admissible, the latter are privileged.

In addition to determining the question of privileged communications the Court in these cases also clearly determines that a party need not reveal either names of witnesses (In re Shoup. p. 222. In re Keough, p. 311, Ex Parte Schoepf, p. 13) nor the identity of other parties responsible (In re Tichy, pp. 104-5: Stanley v. Martin, 6 O. L. R. 628, affd. 12 C. C. N. S. 457).

The United States Supreme Court (Hickman v. Taylor, 329 U. S. 495. 34 O. O. 395) likewise protects the right of parties to retain for themselves the information which they may secure from witnesses after the occurrence of the accident complained of. This case and the Federal rules of Interrogatories were carefully examined by Judge Woeste in the case of Dieckbrader v. Railroad, 51 O. O. 239. He arrives at the conclusion that searching inquiry into pertinent matters should be permitted. Sloan v. Kresge Co., 45 O. O. 407, and Powers v. Ruelbach, 66 Abs 30, likewise hold that Interrogatories are to be “liberally” construed.

Earlier Ohio cases, such as Schuldt v. Investment Co., 61 Oh Ap 213, 15 O. O. 148, and Ward v. Mutual Trucking Co., 1 O. O. 456, 33 O. N P. N. S. 79, support the principle that information which may be secured by Interrogatories

“is intended only to aid the pleader in supporting his own case, and not to help him destroy his opponent’s cause.”

Since the information must both be “pertinent to the issues,” and, of course, admissible at the trial, and since the cardinal requirement of the Petition (§2309.04 R. C.), of the answer (§2309.13 R. C.), and of the Reply (§2309.24 R. C.) demands the use of “ordinary and concise language,” there appears no reason why a Court should not apply similar brevity to the range of Interrogatories. Demurrer to Interrogatories (§2309.43 R. C.) was evidently suggested for that purpose. Therefore an additional requirement should be added. There is no necessity for permitting cross-examination through Interrogatories. Many questions are justified in cross-examination only for the purpose of determining credibility of the witness, or for building a basis to tear down both the witnesses’ testimony and the opposing parties claims, or to support further testimony to be offered by the examining party. There is no necessity of encumbering the pleadings with such matter or with the opportunity for the interrogated party to fill the record with self-serving declarations (Schuldt v. Investment Co., supra).

Applying the foregoing to the instant cases produces the following result: In case No. 63023 Question No. 1 is competent because Plaintiff pleads the necessity of employing a physician which is denied by Defendant and therefore becomes an issue. Questions 2, 3 and 4 respecting amounts paid to doctors, hospital and nurses are not competent because no claim is made for such expenses. Possibly questions as to amounts might be asked to test credibility, and amounts might have a bearing on inferences to be drawn of the extent of the injuries, but direct questions as to length of time of confinement and type of injury would probably be more in point. Question No. 4 concerning names of nurses does not relate to any issue raised in the pleadings. It would be pertinent were Plaintiff claiming expense of nursing care which is not raised in No. 63023.

In case No. 63022, the Demurrer is overruled to both questions 1, 2, 3 and 4 because there is an issue as to expenses. The persons to whom these obligations were incurred, and/or paid, are pertinent in the determination of whether the expense is justified and was caused directly and proximately by negligence of the Defendant.

Journals may be drawn accordingly.


author: By MATIA and THOMAS, JJ.

text:
    KELLEY, Plaintiff, v. SMITH & OBY CO. et al, Defendants
    Common Pleas Court, Cuyahoga County.
    No. 635,817.
    Decided October 28, 1954.

      Sindell & Sindell, Cleveland, for plaintiff.
    Hauxhurst, Inglis, Sharp & Cull, Bulkley, Butler & Rini, Cleveland, for defendant.
   OPINION

By MATIA and THOMAS, JJ.

Should the court, as defendant moves, require the plaintiff to submit to a psychiatric and neurological examination by Dr. Jay B. Cohn, from which examination plaintiff’s counsel and all other persons are excluded?

The inherent power of an Ohio trial court to compel a plaintiff in a personal injury action to submit to a physical examination is generally defined by the Supreme Court in S. S. Kresge Co. v. Trester, 123 Oh St 383. The first two paragraphs of the syllabus read:

“1. In an action for damages for personal injuries, the trial court has the power to require the plaintiff to submit to a reasonable physical examination ... by competent physicians or surgeons, in order that the extent and nature of the injuries may be ascertained.”
“2. The defendant does not have an absolute right to name the physicians or surgeons to make such examination, although the physicians or surgeons suggested by the party applying for such examination are not rendered ineligible thereby, the matter of selection being within the discretion of the trial court.”

In the shadow of that power plaintiffs in personal injury actions, acting on advice of their counsel, ordinarily consent to undergo physical examinations without requiring the defendant to resort to court to obtain an order for a physical examination.

However, should a plaintiff challenge the competence of a doctor named by the defendant to make an examination, the trial court, on motion, would pass on the doctor’s competency. The power of the trial court to designate a competent doctor to physically examine a plaintiff in a personal injury action is ever present, though it may be seldom exercised. Necessarily, too, the trial court possesses the included power of determining and fixing reasonable conditions under which the plaintiff shall be examined.

One of the conditions to be established is whether or not plaintiff’s counsel may be present at the examination of the plaintiff.

In the Trester case, supra, the Supreme Court approved and enforced the order of the trial court which directed the plaintiff to submit to a physical examination by a doctor chosen by the defendant. That order provided in part that

“the plaintiff be permitted to have present at such physical examination if she so desires her counsel and her own physician.”

Undoubtedly, the adversary status of the examining doctor as doctor for the defense, prompted the trial judge to permit plaintiff’s counsel and her doctor to be present at her examination by the defense doctor.

Permission for plaintiff’s counsel to be present at a physical examination of the plaintiff, part of the approved order in the Trester case, is the general rule. Counsel for the defendant in effect are seeking to carve out an exception from such a general rule, when under the circumstances of this case they ask that plaintiff’s counsel be excluded from the psychiatric and neurological examination of the plaintiff by defense Doctor Jay B. Cohn.

In support of its motion to exclude plaintiff’s counsel and all other persons from Dr. Cohn’s psychiatric examination of the plaintiff, defendant offers an affidavit of Dr. Cohn which in part states:

“that a psychiatric and neurological examiniation cannot be properly performed or conducted in the presence of third persons and this particularly is true where the third person has an interest in the outcome of the same; that many matters of a confidential nature must be inquired into, a patient’s intimate feelings and emotions dealt with; that the presence of third person causes a patient, consciously or unconsciously, to guard, alter or disguise his responses; and that any diagnosis of a patient’s condition or evaluation of a patient’s complaints would be of questionable validity where the examination is performed in the presence of third persons.”

In opposition to Dr. Cohn’s position plaintiff’s counsel presents his own affidavit and an affidavit of Dr. Reuben Gould, a competent psychiatrist, who states that the exclusion of third persons is unnecessary for a proper psychiatric and neurological examination.

Keeping in mind that the purpose of Dr Cohn’s examination will be to ascertain for the defendant the nature and extent of plaintiff’s psychiatric and neurologic condition, the examination manifestly should be held under conditions which are most conducive to an authentic appraisál of plaintiff’s condition.

Though Dr. Cohn asserts that a psychiatric and neurologic examination (emphasis added) cannot be properly conducted in the presence of third persons, his reasons deal only with the psychiatric phase of the proposed examination. What he says is that “Many matters of a confidential nature must be inquired into and a patient’s intimate feelings and emotions dealt with; that the presence of a third person causes a patient, consciously or unconsciously, to guard, alter or disguise his responses.” The doctor is speaking solely of voluntary responses obtained through psychiatric interrogation He is not referring to the nervous and muscular reactions elicited in a neurological examination and which are not subject to the will of the patient nor to the presence of a third party.

Confining the question solely as to whether third persons should be excluded from psychiatric examinations of plaintiffs in personal injury actions it is evident that Dr. Cohn and Dr. Gould, both competent psychiatrists, diametrically disagree. In the face of this conflict and on this record it is impossible to determine whether the best psychiatric practice requires the exclusion of third persons from a psychiatric examination.

In the absence of a preponderance of proof that the best psychiatric practice requires or rejects the exclusion of third persons from a psychiatric examination it is concluded that the controlling criterion in the instant case must be the wishes of the examining psychiatrist, unless patently unreasonable.

Bearing the responsibility of rendering an honest and valid opinion concerning the plaintiff’s psychiatric condition, Dr. Cohn should be permitted to conduct a psychiatric examination under' conditions of his selection, unless clearly unwarranted.

As to the psychiatric phase of Dr. Cohn’s examination his insistence that the presence of a third person at the plaintiff’s examination will cause the plaintiff “to guard, alter, or disguise his responses” seems reasonable in view of the purely subjective nature of a psychiatric examination.

However, as to the neurologic portion of his examination. Dr Cohn’s affidavit fails to justify the exclusion of plaintiff’s counsel from this part of the examination. No reason is given and none is perceived why a neuro- , logic examination should be treated differently from a general physical examination of a plaintiff in a personal injury action, at which plaintiff’s counsel is permitted to be present in accordance with the practice followed in S. S. Kresge Co. v. Trester, supra.

What then are the conditions under which the neuro-psychiatric examination of the plaintiff shall proceed?

1. The psychiatric portion of the examination shall be limited to the plaintiff’s claims of physical injury, mental injury, pain and suffering, as recited in his petition, and the prior physical and mental history of the plaintiff, his antecedents, and his immediate family.

2. Questions pertaining to the happening of the accident described in the petition may be permitted only insofar as they relate to the nature and extent of the injuries sustained at the time of the accident and such questions must be put to the plaintiff in the presence of his counsel.

3. Plaintiff’s counsel shall be excluded from the psychiatric examination except as specified in paragraph No. 2.

4. The making of any neurologis tests of the plaintiff shall be in the presence of plaintiff’s counsel.


text:
    BOND et, Plaintiffs, v. FROST et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21890.
    Decided March 7, 1955.
    Reed M. Winegardner, Washington C. H., for plaintiffs.
    John S. Bath, Washington C. H„ for defendants.
   OPINION

By CASE, J.

On December 2, 1954, Plaintiffs filed their “petition in ejectment” herein which reads in part as follows:

“Plaintiffs say that they have a legal estate in and are entitled to the immediate possession of the following-described real estate, to-wit:
“That the defendants, James Barker and Elizabeth Barker, are husband and wife, and that they and the defendant, John E. Frost, and each of them, unlawfully keep plaintiffs out of possession of a house and outbuildings and the appurtenances thereto, including the plot of ground on which same are situated, and being a portion of plaintiff’s real estate, hereinbefore described, situated on the southerly portion thereof
“WHEREFORE, plaintiffs pray for a judgment against the defendants for.the recovery of said premises, including the house and outbuildings and appurtenances thereto and the plot of ground on which same are situated and for costs and all other legal and equitable relief to which they may be entitled.”

On December 31, 1954, Defendants filed their motion herein which reads as follows:

“Defendants move this court for an order dismissing this cause and to strike said petition from the files for the reason that there is another action pending between these same parties for the same cause; that said other action was pending at the time the instant action was filed.”

The Defendants also attached to and filed with said motion their memorandum in support thereof which reads in part as follows:

“Plaintiffs heretofore, on October 9, 1954, as Case No. 419. filed an action in the Municipal Court of Washington Court House, Ohio, and allege in that action that defendants ‘unlawfully and forcibly detain from plaintiffs possession of the following property consisting of a house, outbuildings m connection therewith and the plot of ground on which same stand’ and seeking ‘process, restitution and for the costs of this action.' Defendants duly filed their answers in said action and said action is still pending in said court.
“Had this fact been set forth in plaintiffs’ petition, said petition would have been demurrable by virtue of §2309.08 R. C. As a demurrer does not lie, since plaintiffs have omitted said facts from their petition, defendants seek their remedy of dismissal of the plaintiff’s petition by this motion to dismiss.
“When it is made to appear that there is another action pending in another court between the same parties, upon the same subject matter the court may dismiss the action and remit the plaintiff to his remedy in that court. Catrow v. Columbus, D. & M. R. Co., 11 ONP ns 561. The principle that the pendency of a former suit between the same parties for the same cause is a matter of abatement to a second suit in a court of the same State has its foundation in justice and is firmly established. Weil v. Guinn, 42 Oh St 299. The reason for this rule is to prevent a multiplicity of suits and to prevent a defendant from being harrassed and oppressed by two actions for the same cause; where the plaintiff has a remedy by one, the second suit is not necessary. Spence v. Union Central Life Insurance Company, 40 Oh St 517; Lauer v. Smith, 1 OCC ns 21, affirmed in 65 Oh St 563.”

On March 5, 1955, counsel for Plaintiffs filed a comprehensive memorandum contra Defendants’ aforesaid motion.

The pertinent portions of §2309.08 R. C., cited and referred to in Defendants’ memorandum, read as follows:

“The defendant may demur to the petition only when it appears on its face that:
“(D) There is another action pending between the same parties for the same cause;”

The respective memoranda filed on behalf of the parties hereto clearly admit that such action in Forcible Entry and Detention was commenced and/or pending in the Municipal Court of Washington Court House, Ohio, since November 8, 1954, and since the commencement of the within action in this court on December 2, 1954, and that said causes of action involve the very same premises. But, even though this be true, the next question to be considered and determined is whether or not the action so pending in the municipal court between the same parties is the same cause as that now pending before this court. We think not.

There is no dispute that the action so pending in the municipal court is, by the character of its complaint and relief sought, a cause of action in forcible entry and detainer which required Plaintiffs to set forth in their petition therein certain allegations particularly describing the premises so entered upon and detained, and setting forth either an unlawful and forcible entry and detention, or an unlawful and forcible detention after a peaceable or lawful entry of the described premises, as prescribed py the pertinent provisions of §1923.05 R. C. Nor is there any dispute that said municipal court could acquire and exercise jurisdiction over such a cause of action under the pertinent provisions of §1901.18 (H) R. C.

On the other hand, it is clearly apparent that Plaintiffs’ petition, as filed and pending in this court, by reason of the character of its complaint and relief sought, states a cause of action in ejectment for recovery of certain real property as authorized 'under the provisions of §5303.03 R. C. In an action in ejectment, it is sufficient if the Plaintiffs state in their petition that they have a legal estate in the real property and are entitled to the possession thereof, describing it with such certainty as to identity the property, and that the defendants unlawfully keep them out of the possession. “It is not necessary to state how the plaintiff’s estate or ownership is derived.” (Sec. 5303.03 R. C.)

Chapter 5303 R. C., is entitled “ACTIONS RELATING TO REALTY.” and §5303.03 R. C. thereof deals exclusively and specifically with those essential allegations required to be stated and set forth in a petition on a cause of action in ejectment. The next succeeding section expressly provides the minimum allegations which shall be contained and set forth in the answer to the petition in an ejectment action. Said section reads as follows:

“Sec. 5303.04 R. C. Answer to action for land. (Sec. 11904 GC.)
“In- an action for the recovery of real property, it is sufficient if in his answer the defendant denies generally the title alleged in the petition, or that he withholds the possession. If he denies the title only, possession by him shall be taken as admitted. When he does not defend for the whole premises, the answer shall describe the particular part for which defense is made. The defendant also may set forth in his answer other grounds of defense and counter-claim, as in any other form of action.”

Plaintiffs’ petition, in the cause now pending in this court, clearly raises the question of title to the real estate involved in the forcible entry and detainer action pending in the municipal court between the same parties. This being apparent on the face of Plaintiff’s petition before this court in an action for ejectment, this court must apply established principles of law concerning limitations upon the jurisdiction of municipal courts to hear and determine actions involving title to real estate.

In McDermott’s Ohio Real Property Law and Practice (1950), Section 38.09b, at page 490, it is stated:

“When the evidence or the pleadings disclose a bona fide controversy as to title, on which right of possession depends, or other equitable defense, the municipal court or justice of the peace is without jurisdiction. Williams v. Gordon, 53 Abs 464, 469 (App. 1949).”

Williams v. Gordon, supra, was decided by the Court of Appeals for Cuyahoga County in 1949, and appears to be in accord with an earlier decision of the Court of Appeals for Montgomery County (which is also the Court of Appeals for Fayette County) in the case of Lynam v. Schueler, 79 Oh Ap 101, 33 O. O. 562, 47 Abs 257, 68 N. E. 2d 114, decided May 22, 1946, wherein our Court of Appeals held in part as follows:

“2. The limitation on the jurisdiction of a justice of the peace, as set forth in paragraph 6 of §10232 GC, is effective in forcible entry and detainer actions wherein title to real estate is drawn into question.
“3. The Municipal Court of Dayton, having such jurisdiction in forcible entry and detainer cases as is conferred upon the court of justice of the peace, does not have jurisdiction of an action in forcible entry and detainer where such action requires a determination of the title to realty which is the subject of the action.”

In the cases of Dwyer v. Garlough, 31 Oh St 158, and Robinson v. Williams, 62 Oh St 401, the Supreme Court of Ohio recognized the general rule that where a court of competent jurisdiction has acquired possession of the subject-matter of litigation, and the right of a party to prosecute his action has once attached, the right of the court to retain the case, and of the party to prosecute it, can not be defeated by the institution of proceedings in another court, although of concurrent and co-ordinate jurisdiction; but the Supreme Court held that such rule has no application where the powers of the court first acquiring control of the subject of the litigation are so far limited, or defective, as to be unable to afford that relief to the parties to which they are either legally or equitably entitled.

In their memorandum contra Defendants’ motion to dismiss this cause and strike Plaintiffs’ petition from the files, the Plaintiffs represent and contend in part as follows:

. “Since the defendants, in their answer filed in the Municipal Court Case, listed above, have brought up the 21 year statute of limitations and other matters, involving the title to real estate, that court is without jurisdiction to proceed further in this municipal court case and no disposition can be made of the matters which are now involved in a final determination of this litigation.
“Accordingly, and in the furtherance of a final determination of this proceeding, plaintiffs herein, are, this day, forwarding an Entry for the dismissal, without prejudice, of the Case No, 419, pending in the Municipal Court of Washington C. H., Ohio, and ask the defendants in this action, who are also the same defendants in the Municipal Court action, to approve such Entry of Dismissal, and join in asking the Municipal Judge to dismiss the same, so all matters can be finally determined, that are in dispute, in this proceeding.
“However regardless of the disposition of the proceedings involved in Case No. 419 pending in the Municipal Court of Washington Court House, Ohio, there is no conflict between the authority of this Court, for the disposition of this case, as the Municipal Court is a court of limited jurisdiction and the Common Pleas Court is a court of general jurisdiction, and the latter has preference, under such situation to completely dispose of the controversy in issue.
“In support of the statement made in the last paragraph, I wish to call the attention of the court to the Case of Nemeth v. Bittikofer. reported in-69 Abs 87, decided November 13, 1953, by Judge Thomas of the Common Pleas Court of Cuyahoga County, Ohio, in which Syllabus (5) states—
“ ‘The first acquired jurisdiction of a court of limited jurisdiction does not exclude the exercise of the subsequently acquired jurisdiction of a court of general jurisdiction where the first court’s authority is not adequate to completely dispose of the controversy in question.’ ”

It appears that the principle of law so quoted from the fifth headnote in the Nemeth case, supra, is applicable to the case at bar.

FINDINGS OF FACT AND LAW

Briefly summarizing the facts, as they appear from the pleadings and admissions contained in memoranda of record herein, the Court finds:

1. That, prior to the action in ejectment now pending in the common pleas court between Plaintiffs and Defendants, Plaintiffs commenced an action in forcible entry and detainer against said Defendants in the Municipal Court of Washington Court House. Ohio, involving the very same premises;

2. That said action .in forcible entry and detainer is still pending in said municipal court between the same parties; and

3. That the pleadings, in said forcible entry and detainer action in said municipal court, raise and present a distinct bona fide issue and dispute involving the title to said premises between the same Plaintiffs and Defendants.

Briefly summarizing the law applicable to the facts of record herein, the Court finds:

A. That the allegations contained and set forth in Plaintiffs’ petition, in the cause pending in the common pleas court, are in accord with and satisfy the express statutory provisions of §5303.03 R. C., and state a cause of action in ejectment;

B. That a cause of action in ejectment is a separate and specific statutory remedy which is distinguished by statute and case law from the statutory remedy of forcible entry and detainer;

C That the Municipal Court oí Washington Court House, Ohio, has such jurisdiction in forcible entry and detainer cases as is conferred upon the court of justice of the peace, but does not have jurisdiction of an action m forcible entry and detainer where such action requires a determination of the title to realty which is the subject of the action (Lynam v. Schueler, 79 Oh Ap 101. 33 O. O. 562, 47 Abs 257, 68 N E. 2d 114).

D That, since said municipal court is without jurisdiction, in the aforesaid forcible entry and detainer cause, to determine the title to the realty which is the subject oí said action, there is no basis in fact and law to support Defendants’ contention that the principle of abatement should be applied to said action in ejectment in order “to prevent a multiplicity of suits and to prevent a defendant from being harrassed and oppressed oy two actions for the same cause.”

Therefore, upon the grounds and for the reasons hereinabove set forth and discussed, the Court finds that Defendants’ motion, to dismiss said cause of action in ejectment and to strike Plaintiffs' petition from the files, is not well made and should be overruled.

The court further finds that counsel for Plaintiffs should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Defendants and thereupon submit same to counsel for Defendants and lo this court for approval within ten days.


author: By BIRRELL, J.

text:
    UCCELLO, Plaintiff, v. INTERSTATE TRUCK SERVICE, INC., Defendant.
    Common Pleas Court, Trumbull County.
    Nos. 62990, 62991
    Decided April 1, 1954.

      Sieman & Sieman, Warren, for plaintiff.
    Hoppe, Day & Ford. Warren, for defendant.
   OPINION

By BIRRELL, J.

In each of these two cases the Defendant has moved “for an order striking from the Petition of the Plaintiff * * * all of the Plaintiffs’ specifications of negligence.” The specifications are the same in each case which are both founded upon the same accident. The wife, Plaintiff in case No. 62990, sues for her own injuries, and her husband, Plaintiff in case No. 62991, sues for damages by reason of medical expense and his loss of her wifely services.

Plaintiff’s specifications of negligence in each case are as follows:

“Plaintiff further says that said collision and her resultant injuries and damages were caused solely and directly as a result of the negligence on the part of the Defendant, by and through its driver, and his disregard of the safety of the plaintiff, in the following respects, to-wit:
“1. In failing to reduce the speed of its truck upon approaching the intersection and commencing a right turn into the intersecting highway along which Plaintiff was proceeding.
“2. In failing to apply his brakes or bring said truck to a stop before driving in to the left side of the Plaintiff’s automobile.
“3 In commencing and completing said right hand turn without driving said truck along the right edge of the intersecting highways.
“4. In failing to drive said truck upon the right half of the roadway, but instead in driving same over onto the left (north) side of said Evansville Road and into the left side of the Plaintiff’s automobile.
“5. In failing to blow a horn, give a hand signal or light signal or any other warning or signal of his intention to make said turn and to proceed over into the left (northerly) side of the road in which the plaintiff’s automobile was situated.
“6. In failing to keep a look-out ahead and to the sides of said truck to observe the presence, approach and position of the plaintiff’s automobile.
“7. In failing to have said truck under control.
“8. In failing to turn said truck over onto the right side of the road or otherwise change the course and direction thereof so as to prevent driving same into the left side of the plaintiff’s automobile.”

In each petition Plaintiff had already alleged in the preceding paragraph that the driver of Defendant’s truck

“made a wide right turn (at the intersection) in order to proceed in án easterly direction * * * and in so doing drove over on to the left (northerly) side of said * * * road * * * and drove * * * into the left side of (Plaintiff’s) automobile * * *"

This narrative is the proper statement of Plaintiff’s cause of action in each case, and is sufficient to admit evidence of the manner in which the collision came about, without the strained attempt to plead the legal significance of each alleged movement or inaction. The distinction between the “concise” statement and the “specifications of negligence” is purely in the realm of English grammar The concise description of the manner in which the collision occurred sets forth the cause of action: the labored specifications, is an argument, commonly designated a conclusion of law. The former is proper: the latter, improper. The idea which Plaintiff is attempting to convey in the specifications is that the collision was caused by negligence. In stating a cause of action it is only required to allege once, and without repetition, that the actions of the defendant were negligently done. The so-called specifications allege a conclusion which the Plaintiff desires the Court and Jury to adopt as their finding in the case. The proper place for Counsel to argue this point is to the Jury, not in his Petition.

The Court must declare the legal obligation arising from the facts: it is unnecessary for the pleadings to do so

Davis v. Guarnieri, 45 Oh St 470, pp. 485-6. “The Plaintiff, in the case at bar, having alleged that the defendant carelessly sold and delivered to the Plaintiff a poisonous drug for harmless medicine, could safely rest the issue upon such averment. To plead specially all the facts and circumstances from which the negligence could be inferred would be to plead evidence instead of facts.”

The S. E. & W. Railroad Co. v. Mackey, 53 Oh St 370, p. 382. “The general rule is that allegations which adequately state the facts of negligence are sufficient to constitute good pleading. An allegation specifying the act. the doing of which caused the injury, and averring generally that it was negligently done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged.”

Miller v. Dayton, 70 Oh Ap 173, pp. 176-7. “It is well recognized that one may not plead legal conclusions but must set forth factual averments from which it appears that there has been a violation of legal rights So that to state that a given set of facts constitute a nuisance or create a dangerous condition is objectionable pleading and add nothing whatever to the force and effect of the fact pleaded.”

See also Gerend v. City of Akron, 137 Oh St 527.

Ohio Courts have held repeatedly that conclusions of law have no place in Petitions. It is necessary to cite only 31 O. Jur., p. 552, No. 21 et seq., and the many cases supporting the text in the notes and supplements thereto. Some more recent decisions on this point are:

Munn v. Heriff, 10 O. O. 208, 25 Abs 570; Heim v. Deshler Wallick Hotel Co., 35 Abs 395; Davis v. Rolling Mills, 54 Oh Ap 298 at p. 301; Tag v. Linder, 87 Oh Ap 302, 42 O. O. 432, 57 Abs 248; Brown v. Pollard, 51 O. O. 214, 66 Abs 253; Mutual Insurance Co. v. McGinnis, 54 O. O. 42, 68 Abs 390.

Plaintiffs in our cases endeavor to excuse themselves and support their pleadings by citing the following Supreme Court Decisions:

Winzeler v. Knox, 109 Oh St 503, at p. 517; Bradley v. Rapid Transit, 154 Oh St 154, at p. 162; Centofanti v. Railroad Company, 157 Oh St 396.

Nc one of these cases decide, nor is their syllabus, nor their Opinion, a determination of, whether conclusions of law may be employed in stating specifications of negligence The Supreme Court in each case passes upon the pleadings and the record which was presented to it on the appeal.

The proposition that a specification of negligence should or should not be included in a Petition apparently has never reached the Supreme Court in the form of appeal from the sustaining of a Motion to Strike. Whatever rulings Trial Courts have made upon objections to various forms of such specifications have not prevented cases from going to the Jury, and being submitted upon the law, as it applied to the actual facts proven in the case. Consequently no one has usually bothered to appeal from the rulings of Trial Courts upon the striking of specifications of negligence. Trial Courts likewise may have varying views, and may make varying rulings, on this subject, for it is, perhaps, somewhat of a discretionary matter with Trial Judges. Unless stricken out below the Reviewing Courts naturally recognize the existence of the pleadings as received by them. Their Opinions therefore have discussed such pleadings without passing upon the validity or irregularity of such specifications.

In the citation from the Winzeler case, supra, it is claimed that the following sentence from Justice Marshall’s Opinion, at page 517, up-holds Plaintiff’s right to include specifications of negligence:

“In an ordinary action for negligence, a Petition containing only a general allegation of negligence, without any specification of acts or conduct which would advise the Defendant of what he would have to meet at the trial would undoubtedly be demurrable.”

It will be noted that Justice Marshall did not say “specifications of negligence,” but referred to “specifications of acts or conduct which would advise the Defendant of what he would have to meet.” “Specifications of acts or conduct” should point out what the Defendant is claimed to have done It is not believed that this phrase can be interpreted to include a statement that such “act” or “conduct” constitutes negligence Judge Marshall merely says that unless the Petition specifies “acts or conduct” which under the law constitutes negligence the Petition might be Demurrable Considering this sentence as part of a reasoned opinion, his following sentence (at p. 517) completes his thought and is as follows:

“and by the same token a general allegation in a petition of a failure to comply with the sections * * * of the Act must also be held to constitute a mere legal conclusion”

which statement furnishes more weight to the argument against pleading legal conclusions, than the previous sentence is claimed to furnish, for such practice.

In the Bradley case it is likewise claimed that a statement from Judge Stewart’s Opinion authorized Plaintiff’s so-called specifications of negligence. Again it should be noticed that Judge Stewart says that a proper petition must include “Averments stating facts which it is claimed constitute negligence.” Judge Stewart is also stating the concept mentioned m the Winzeler case by using the phrase, “averments stating facts,” instead of the phrase, “specifications of negligence.”

In the Centofanti case, above, it may be repeated that the common reference to such type of pleadings does not constitute an approval of this practice, nor does reference to such specifications by Trial Courts in their charges to Juries necessarily approve the practice, because, unless the Petition has been attacked by Motion, it is unnecessary for the Trial Court to interfere therewith.

The undersigned in times past has participated as an attorney in the trial of negligence cases wherein he not only found difficulty in framing specifications of negligence, in his own pleadings, to match artful example of Plaintiff’s petitions, but also listened to labored charges of a Trial Court in its struggle to read to the Jury and explain minutely and separately each of numerous specifications which had been shrewdly designed by skillful lawyers to impress upon the Jury the many and suggestive pit-falls of negligence which even the wary driver could never have avoided. The result of such intricate proceedings was a complete failure to clearly define the requirements of ordinary care to an ordinary Jury in ordinary and concise language. Of course the Statute does not require the charge to be given in ordinary language, but if it were given in the complicated language of prolonged and involved specifications, such as appear in our instant cases, neither can the Judge express, nor is it possible for a Jury to assimulate, a fair concept of the law on the subject.

Specifications in the form of conclusions of law as set forth in Plaintiffs’ Petition in these cases are more of a hindérance to the Court than a help. The excessive attempt to repeat, expand, elongate, exaggerate and extend such specifications leads to confusion as to the actual averments of the Petition. Better that the facts be pleaded as facts, rather than as complicated arguments. There is no necessity of such confusion being thrust upon the Trial Judge. Plaintiff should be required to observe the law, and plead his case in the “ordinary and concise” language required by the Statute. Plaintiff, if he desires to inform the Court of his claimed specifications of negligence, should better have furnished a Trial Brief to the Judge. Such helpful procedure has been followed in Ohio Courts, and was suggested in an article by Chief Justice Vanderbilt of New Jersey, recently reprinted in one of the legal magazines.

The respective duties of lawyers, judges and Juries are so clearly defined in this respect by our Supreme Court that the question of the extent of the lawyers art in framing pleadings is clear.

Hadfield-Penfield Steel Co. v. Sheller, 108 Oh St 106 at page 110-111.

“A cause of action arises from both facts and law, and, while it is frequently stated.that a petition must show a good cause of action, it is nevertheless a fundamental principal of pleading that the legal obligation should not be stated. The pleader should state only the operative facts. The pleading is addressed to the Court, and it becomes the duty of the Court to add the law to the operative facts, thereby completing the process. It is only necessary to introduce evidence to substantiate the operative facts. * * * If it is a Jury case that is on trial, it is not necessary for the pleader to allege the legal duty in the pleadings: * * *: When the evidence is all introduced it becomes the duty of the Court to advise the Jury of the legal obligations arising upon the facts which the evidence tends to prove, and, from a consideration of the evidence received from the witness stand and the law stated by the Court, the Jury reach a verdict.”

Louden v. Cincinnati, 90 Oh St 144 at p. 159.

“The amended petition does not aver in terms that the injury to Plaintiff’s property was the natural, or necessary, or probable, result of Defendants’ acts, but it does aver a trespass * * * It is not necessary that a pleader should draw a conclusion from the facts pleaded. It is sufficient if the allegation of the petition states the facts upon which Plaintiff relies for recovery, and if the plaintiff is able to maintain by proofs the allegations of her amended petition, she is entitled to recover for the damages resulting from the invasion of her rights and the destruction of her property.”

Doubtless there are many such lucid explanations in both the earlier, and in the more recent, opinions of our learned Judges. In fact it should be unnecessary to encumber the law books with repetition of this elementary matter. That the Ohio rule is in accordance with the general rule is shown by the following references;

21 R. C. L. No. 5 p. 440—text & notes 10-11; 49 C. J. No. 19 (3) p. 47 text and notes 14-15; 71 C. J. S. No. 13-15 pp. 34-41 text and notes 13-16, 33, 38; 41 Am. Jur. No. 16 pp. 300-1.

Since pleadings need not go to the Jury possibly it makes little difference what is included therein. The Court, by applying sufficient inspection, may avoid error in most complex matters without striking anything from the pleading. But by employing some of this dexterity early, attorneys might be induced to help rather than hinder in the judicial process. We all admit that it is more difficult to present a matter in “ordinary and eoricise” language. It is generally supposed that the Juror better understands simple terms. Surprising as it may seem, it is the Juror who has the last guess at what the Plaintiff is driving at. Why should the Judge wait till the last day “in the afternoon,” when ordinary and concise language may be encouraged early in the proceedings and less liability of misunderstanding be promoted in the instructions to the Jury.

Journals may be drawn in accordance with this Opinion.