author: By GESSAMAN, J.

text:
    EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Plaintiff, v. ROBINSON, Supt. of Insurance, Defendant.
    Common Pleas Court, Franklin County.
    No. 181605.
    Decided September 19, 1957.

      Wright, Harlor, Purpus, Morris & Arnold, Squires, Sanders & Dempsey, Milbank, Tweed, Hope and Hadley, for plaintiff.
    William Saxbe, Atty. Geni., Paul R. Gingher, Special Counsel, for defendant.
   OPINION

By GESSAMAN, J.

In this action the plaintiff seeks (1) the declaration of this Court (a) construing §9404 GC (now §3911.20 R. C.). as not prohibiting the operation of plaintiff’s Assured Home Ownership Plan in Ohio; (b) that said plan does not violate said section and is not illegal; and (2) for an order (a) enjoining the defendant from taking any proceedings or steps to compel the plaintiff to discontinue said plan in Ohio and (b) from taking or instituting any proceedings for the revocation of plaintiff’s license to do business in the State of Ohio by reason of the operation of the plan in Ohio. The case has been submitted to the Court upon the pleadings, the evidence, including certain stipulations, and the briefs of counsel.

Plaintiff is a corporation organized and existing under the laws of the State of New York and is licensed to transact business in Ohio. It is engaged in the business of selling life, health and accident insurance and annuity contracts not only in Ohio but in all states and the District of Columbia. In the same territory, plaintiff is also engaged in the business of investing its assets and reserves in certain investments, including loans secured by mortgages on real estate and other forms of collateral.

Counsel have stipulated that-

1. Plaintiff has developed and operates in the State of Ohio an investment program for the making of long-term, monthly amortizing residential loans which is now known as the Assured Home Ownership Plan, hereinafter referred to as the Plan.

2. Said loans are made pursuant to that portion of Section 81, subdivision 6 (a) of the Insurance Law of the State of New York, which limits the making of first lien mortgage loans to an amount which does not exceed two-thirds of the value of the real property securing the same.

Counsel have also stipulated that the plan is in part as follows:

(a) Plaintiff loans funds on promissory notes, secured by mortgages on residences to home owners in conjunction with insurance on the lives of the borrowers.

(b) The property upon which the mortgage loan is placed must meet standards of location, design and appraisal. The dwelling may be already owned or the loan may be the primary means of acquiring or building it.

(c) There is a selection of borrowers, as well as properties, in that the applicant must be a good financial and moral risk. The amount and duration of a particular loan are determined not only by the condition of the property, but also by the prospective earning power of the family provider.

(d) Life insurance protection is required to cover the contingency of the cessation of earning power of the family provider because of his death. The person insured must be the support of the family and if the dwelling is owned by the wife but the husband is the support of the family, the insurance must be on the life of the latter. The life insurance may be either insurance, issued by the plaintiff, already in force or insurance newly issued by the plaintiff of types of insurance such as Ordinary Life, Adjustable Whole Life, Limited Payment Life and Endowment forms, as the applicant may select. The use of such types of insurance provides cash and loan values in the policy which, subject to the approval of plaintiff, may be used to tide the loan over periods of sickness, financial embarrassment or unemployment, and when such values equal the unpaid balance of the loan, they may be used to pay off the mortgage. Under the assignment hereinafter referred to, the persons insured under the Plan may only use the cash values on the life insurance to meet monthly or final payments on the mortgage-secured loans and this only with the approval of plaintiff or withdraw said cash values when the loans secured by such mortgages are paid in full. No such limitation is contained in the terms of the policy providing said life insurance but a copy of the assignment is attached to the policy.

(e) The rates of interest on such loans, the minimum and maximum amounts of loans, and the terms of repayment have varied from time to time through the years, depending on changes in interest rates in the lending market, on market practices and other conditions in the residential loan field.

(f) Plaintiff now makes no other form of residential loans.

(g) When new insurance is to be'used, the insurance must be in full force and effect before a commitment for a loan will be made. Agents of the plaintiff who are licensed to solicit insurance business are authorized to accept applications for loans for transmittal to the plaintiff’s Residential Mortgage Department.

(h) When an application for a loan is submitted, the applicant is required to make a good faith deposit of $25.00 and a deposit to cover the cost of appraiser’s and photographer’s fees and receives a receipt therefor. The loan application is forwarded to the local office of the plaintiff’s Residential Mortgage Department where it is processed exclusively by the salaried employees of that office. Then the property is inspected and appraised; photographs and surveys, when necessary, are made, and title opinions of attorneys or title policies obtained. If life insurance on the life of the borrower has been assigned to the plaintiff and the loan for which the borrower applied has been closed, plaintiff assumes the cost of appraiser’s and photographer’s fees with reference to the property on which the mortgage loan is granted.

(i) Determination as to the desirability of the loan is made wholly independent of any life insurance consideration. If the loan is found to be desirable and if life insurance issued by the plaintiff (existing or newly issued) is in force as provided under the Plan, the Residential Mortgage Department at the Home Office will thereafter, if it approves the application for the loan, make a commitment to advance the amount of the loan applied for, subject to the usual title closing requirements and assignment of the life insurance policy to plaintiff.

(j) Whether existing insurance or newly issued insurance is involved, the loans are closed in the customary way by local attorneys or title companies and plaintiff tokes a note secured by a first mortgage as well as an assignment of the life insurance theretofore placed in force. The policy or policies are stamped to indicate that they have been assigned to plaintiff and are to be returned to the insured. In addition to the life insurance, plaintiff requires fire and windstorm insurance on the property to protect the loan.

(k) By the terms of the assignment of the policy to the plaintiff, the insured reserves the right to change the beneficiary named in the policy to receive the amount due in excess of the amount required to pay off the loan. The insured also reserves the right to withdraw in cash any dividends apportioned to the policy; but if he does not withdraw a dividend in cash, but elects to apply such dividend to purchase ‘dividend additions’ or ‘dividend deposits,’ then they become subject to the lien of the assignment.

(L) The life insurance to be provided may be either existing insurance with the plaintiff, or new insurance issued by the plaintiff, or a combination of both. In any case, the insurance must be in an amount equal to the loan. Whether existing insurance or new insurance or both are used, level monthly payments are arranged, each of which includes interest on the mortgage, amortization and the life insurance premiums, so that the borrower can pay off his loan in equal monthly installments over the term of the loan. The loan periods vary from ten and one-half to twenty-five years and if the family provider should die before the loan has been repaid, the mortgage is cancelled and (except where the insured has made a loan on his policy) an ¿mount equivalent to all payments previously made on account of the principal of the loan is paid to the beneficiary named in the policy. When the borrower completes the mortgage payments, the assignment of the policy is cancelled and he can continue the policy, discontinue it, or convert it in any manner otherwise possible.

(m) When existing insurance of the plaintiff is used to protect the loan, the policy may have to be changed or supplemented so as to provide a policy equivalent in face amount to the amount of the loan, and the method of premium payments has to toe changed so as to provide for the inclusion of premiums in the level monthly installments that become due under the Plan on the first of each month.

' (n) Applications for new insurance are processed exclusively by the plaintiff’s underwriting department. At the time of making application for the insurance, the applicant is required to and does pay the first premium for such insurance and obtains a receipt placing the insurance in effect on the date of the receipt, provided only that the applicant is an insurable risk under the plaintiff’s rules and the application is otherwise acceptable for the type and the amount of the insurance and at the rate of premium applied for. If the application for the loan is disapproved, the insurance which is then in force is not affected thereby.

The evidence discloses that plaintiff operated the plan in Ohio from 1915 to 1932 when it was discontinued because of the depression. Operation of the plan started again in this state in 1941. Early in that year the Attorney General of Ohio rendered his opinion to the Superintendent of Insurance to the effect that the “plan * * * does not violate §§9403 and 9404 GC, or any other provision of law.” In 1950, the Attorney General of West Virginia held that the plan violated West Virginia law and later in the same year the Attorney General of Ohio held that the plan “violates §9404 GC, prohibiting any life insurance company from giving or offering to give, as an inducement for insurance, the loan of any money, directly or indirectly.” This latter ruling is the basic reason for the filing of this law suit.

The language of the statute which must be considered in determining the issues of this case is found in the second paragraph of §3911.20 R. C. (formerly §9404 GC). This paragraph reads as follows:

“No life insurance company doing business in this state, or any officer, agent, employee, or representative thereof, nor any other person, shall pay, allow, or give, or offer to pay, allow, or give, directly or indirectly, as an inducement to insurance, nor shall any person, partnership, or corporation knowingly receive as such inducement to insurance, any .rebate of premium payable on the policy or any special favor or advantage in the dividends or other benefits to accrue thereon, or any special advantage in the date of a policy or date of the issue thereof, or any valuable consideration or inducement. Nor shall such company or person give, receive, sell, or purchase, or offer to give, receive, sell or purchase as inducements to insurance or in connection therewith, any stocks, bonds, or other obligations or securities of any insurance company or other corporation, association, partnership, or individual, or any dividends or profits to accrue thereon, or any paid employment or contract for service of any kind, or anything of value; nor shall such company or person give or offer to give, or enter into any separate agreement promising to secure, as an inducement or consideration for insurance, the loan of any money, either directly or indirectly, or any contract for services.”

In view of the fact that there are no reported decisions on the questions raised herein, we must of necessity resort to a careful analysis of the statute. Deleting from the paragraph in question, all language not applicable to this case and of all synonymous words, we find four inhibitions. The last two are discovered by separating the last sentence after the last semi-colon. These inhibitions are as follows:

1. “No life insurance company doing business in this state or any * * * agent * * * shall * * * allow, give or offer to * * * allow or give, directly or indirectly, as an inducement to insurance * * * any valuable consideration or inducement.”

2. “Nor shall such company or person, give * * * sell * * * or offer to give * * * sell, as an inducement to insurance or in connection therewith * * * anything of value;”

3. “* * * nor shall such company or person give or offer to give * * * as an inducement or consideration for insurance, the loan of any money, directly or indirectly * * *.”

4. “* * * nor shall such company or person * * * enter into any separate agreement promising to secure, as an inducement or consideration for insurance, the loan of any money either directly or indirectly * *

The last inhibition just quoted (number four) may be disposed of quickly by observing that there is no evidence of any such separate agreement. The evidence is clear that the local agent takes the application for both the loan and the new insurance (if none is then in effect) and these applications are forwarded by him to the home office for approval or disapproval. The approval of the life insurance application is not dependent upon the approval of the loan application but the approval of the latter is dependent upon the approval of the former. There is, however, no evidence of any separate agreement ever having been made to secure a loan as inducemnt or considration for insurance, either directly or indirectly. The plan itself does not call for such an agreement.

In considering inhibitions one and three, supra, we must keep in mind that the inducement may be and often is the motive for entering into a contract. It is not to be confused with the consideration of the contract itself. H O. Jur. (2) 304. Section 66 on “Contracts.” The words “inducement” and “consideration” as used in number three, supra, are synonymous. They are undoubtedly used synonymously in number one. supra, because any'inducement would, in all probable instances, be consideration of some value to the promissee. Therefore, in considering number one, the question is as to whether or not there is any evidence that the plaintiff or any of its agents in Ohio, has allowed or given or offered to allow or give, directly or indirectly, as an inducement to insurance any valuable consideration or inducement. In our opinion there is none. In considering number three, supra, the question is as to whether there is any evidence that the plaintiff or any of its agents, in Ohio, has given or offered to give as inducement or consideration for insurance, the loan of any money, directly or indirectly. In our opinion, there is none. In passing we feel compelled to observe that the language used in this part of the statute is cumbersome and unfortunate, to say the least. It is our feeling that the legislature undoubtedly meant to say: “nor shall such company or person loan or offer to loan any money, directly or indirectly, as an inducement or consideration for insurance.” We shall so consider it. There is no evidence of any such act or offer.

Counsel for the defendant contend that, compared with 'other agencies, a lower rate of interest is charged by plaintiff and that this constitutes an inducement for insurance. It is a fact that an interest rate, lower than many lending agencies, is charged but we do not agree that there is any evidence in the record that that fact has been held out by plaintiff or any of its agents in this state as an inducement for insurance. There is no doubt but that a lower interest rate will attract borrowers. A lower price usually does attact a prospective purchaser. But the plaintiff’s loan policies are not in issue in this case, unless there is evidence that plaintiff or its agents has loaned or offered to loan money, directly or indirectly as an inducement or consideration for insurance. If the latter element has not been or is not present, we can find no violation of the statute. There is no evidence that it is or has been a part of any transaction.

A careful examination of the details of the plan discloses that there is no element of inducement for insurance in the plan itself. It is true that plaintiff requires its insurance as security for the loan, but the reason for this was fully explained by Mr. John H. Muller, a vice-president of plaintiff company. Briefly stated, with its own insurance, the entire operation is watched with a minimum of work and expense. The record of payments on the mortgage note and the record of payments on the insurance are kept in the plaintiff’s offices, whereas, if different security were accepted, plaintiff not only would not have a record of payments on the insurance (the security), but also would have no control over it. Under the plan as outlined, it not only has the record of, but it also has control of the insurance, thereby creating better security for its investments. The plan, per se, as outlined by the evidence, does not place the plaintiff or any of its agents in the position of loaning or offering to loan money or of allowing or giving or offering to allow or give any valuable consideration or inducement as an inducement or consideration for insurance. Furthermore, there is no evidence that any agent ever offered to even attempt to secure a loan as an inducement or consideration for insurance.

To constitute a violation of these aspects of the statute, the evidence must clearly establish the essential element of inducement or consideration for insurance. In our opinion, there is no evidence that any act has been done for that purpose, and there is, obviously, no evidence that the plan per se contains any such element.

Considering now, number two, supra, it is again clear that the giving or selling or offering to give or sell “anything of value” must be “as an inducement for insurance or in connection therewith” to violate the statute. There is no evidence of any such act. The evidence is clear that “No agent has the power or authority to give, offer or promise to secure a loan.” Plaintiff’s Exhibit L, page 24, Sec. VI, paragraph 1. Thereford the plan, per se, is not violative of this provision. Furthermore, there is no evidence that either the plaintiff or any of its agents has ever given or promised to give or sold or promised to sell anything of value “as an inducement to insurance or in connection therewith.” The evidence is clear that there must be insurance before the loan will be approved but there is no assurance that the loan will be approved merely because insurance is purchased. The result is that under the plan nothing of value is given or promised or sold or promised to be sold as an inducement for insurance or in connection therewith. Again, the latter is an essential element.

Beyond that, under the rule of ejusdem generis, a decrease in the rate of interest (if any) would not be “anything of value” within the meaning of the statute. The rule to be applied is found in 37 O. Jur. 779, Section 450, as follows:

“In accordance with what is commonly known as the rule of ejusdem generis, where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be construed as restricted by the particular designation and as including only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose. An explanation which has been given for the principle is that if the legislature had meant the general words to be applied without restriction it would have used only one compendious term. In accordance with the rule of ejusdem generis, such terms as ‘other,’ %ther thing,’ ‘others,’ or ‘any other,’ when preceded by' a specific enumeration, are commonly given a restricted meaning, and limited to articles of the same nature as those previously described.”

The specific language makes no reference to interest rates on loans.

Counsel for the parties have referred to the unreported case of The Equitable Life Assurance Society of the United States v. Robert A. Crichton, etc., decided by Honorable Julian F. Bouchelle, Judge of the Circuit Court of Kanawha County, West Virginia, on September 20, 1951. We have been favored with a copy of Judge Bouchelle’s opinion (Plaintiff’s Exhibit R), and with a copy of the judgment entry of the case The judge held that the plan did not violate the laws of West Virginia (somewhat similar to those of Ohio) and also had this to say:

"It is not necessary for the court to engage upon a dissertation as to the meaning of the word ‘inducement,’ etc; neither is it necessary for the court to discuss the fact raised by the defendant in its brief that the piamciff will not accept life insurance in other companies. The r.ason and necessity for this is obvious.”

As already indicated, our feelings are the same.

Counsel for the parties have discussed in their briefs the effect of administrative interpretation of this statute upon the Court in the present case. The rule is stated at page 381 in State, ex rel. Morris v. Industrial Commission of Ohio, 134 Oh St 380, and its application limited in State. ex rel. Brooks Equipment and Manufacturing Co. v. Evatt, Director, etc., 137 Oh St 125 as follows:

“However, an administrative practice cannot prevail over the clear requirements of the statute which set up a different procedure.”

We have not discussed the effect of any administrative interpretation for the reason that, in our opinion, there is no “doubtful meaning” of the statute. It is our opinion that the language of the statute is clear.

Counsel for the defendant urge that in determining the issues of this case, the law should be liberally construed. State, ex rel. The National Mutual Life Insurance Co. v. Conn, Superintendent, 115 Oh St 607; State, ex rel. Federal Union Insurance Co. v. Warner, 128 Oh St 261, and State, ex rel. Allstate Insurance Co. v. Bowen, 130 Oh St 347. In view of our conclusions already announced herein, there are, at least, two other well-established rules that must be considered. The first one is that “Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation.” 37 O. Jur. 514, Section 378. The second is that “In the construction of statutes it is the expressed legislative intent that is of importance. The law does not concern itself with the legislature’s unexpressed intention. The question is not what the General Assembly intended to enact, but what is the meaning of that which it did enact.” 37 O. Jur. 535, Section 381.

As we have already indicated, it is our opinion that the expressed intent of the legislature is clear and unambiguous. Therefore, we need n<jt resort to rules of statutory interpretation. Furthermore, we observe in passing that if, during all of the years that the plan has been in operation in Ohio, it had been the desire and intention of the legislature to terminate it, that could have been done in clear and concise language.

Coming now to the specific prayers of the petition, it is the opinion of the Court, for the reasons given, that §3911.30 R. C. (formerly §9404 GC), does not prohibit the operation of the plaintiff’s Assured Home Ownership Plan as outlined by the evidence in this case and that said plan, in and of itself, does not violate said section and is not illegal. It is further the opinion of the Court that the defendant be enjoined from taking any steps or proceedings to compel the plaintiff to discontinue the operation of the plan, as it is now framed and operating in Ohio. However, we are of the opinion that we may not enjoin the defendant from “taking or instituting any proceedings for the revocation of plaintiff’s license to do business in the State of Ohio by reason of the operation of the Plan in Ohio.” Such an order would be too broad. In spite of our conclusion that the plan per se does not violate §3911.20 R. C., we have no means of knowing what might transpire in the future “by reason of the operation of the Plan in Ohio.” That is to say, this Court has no authority to limit the defendant’s statutory powers in the event that the laws of Ohio are violated in the operation of the plan in Ohio. The defendant, however, has no right to revoke plaintiff’s license to do business in Ohio as long as the plan is operated in Ohio as outlined by the evidence of this case.


source: Caselaw Access Project

author: By HUNSICKER, J:

license: Public Domain

text:
    DUFFY, Appellant, v. CLEVELAND COIN MACHINE EXCHANGE, INC., Appellee. DUFFY, Appellee, v. CLEVELAND COIN MACHINE EXCHANGE. INC., Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23783, 23784.
    Decided December 6, 1956.

      Gorham, Arthur & Schofield, for appellant in Case No. 23783 and for appellee in Case No. 23784.
    Jack A. Feingold, for appellee in Case No. 23783 and for appellant in Case No. 23784.
    (STEVENS, PJ, HUNSICKER and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, J:

Two appeals on questions of law are joined and considered herein.

John J. Duffy, herein called “Duffy,” brought suit against Cleveland Coin Machine Exchange, Inc., herein called “Company,” to recover for the loss of an automobile which Duffy claimed he left on the parking lot of the Company, and which Duffy says was stolen from that lot. At the conclusion of the action in the trial court, each party filed a notice of appeal from the judgment rendered in behalf of Duffy. These two appeals were then consolidated and presented as one case to this court.

The Company operated, in conjunction with their business, a public parking lot where, for a charge of thirty-five cents, persons, other than customers of the Company, could park their automobiles. An attendant was on duty at this parking lot from about 7:30 o’clock, a. m., to 5:00 o’clock, p. m.

Duffy for some years parked a motor vehicle in this lot. The Company purchased the lot about a year before the happening of the . events herein, and Duffy continued to avail himself of the parking facility.

Both Duffy and the Company parking attendant testified that Duffy frequently would park when the attendant was temporarily absent and on those occasions he would pay the parking fee at a later time. Duffy was instructed, and both parties testified, that, at the request of the Company parking attendant, Duffy always left the ignition keys in the motor vehicle so that it could be moved when necessary. If the Duffy automobile, or any other motor vehicle, was on the lot when the attendant left for the day, such automobile was locked and all windows were closed.

The attendant on this lot always recognized the Duffy Buick convertible coupe, and of course knew Mr. Duffy.

Duffy said he brought the car to the parking lot on the morning of November 30, 1954, and, since the attendant was not there, he parked the car and left the keys in the ignition lock. He did not pay the parking fee. Mr. Duffy did not return to the parking lot until about one o’clock the next morning. The automobile was not there, but the badly wrecked vehicle was later recovered by the police.

The parking lot attendant testified that the Duffy automobile was not parked in the lot on that day (November 30): however, an employee of the Company testified that he saw a Buick convertible coupe on the parking lot at 10 o’clock or 10:30 o’clock on the night before he heard that such a car was stolen from the lot.

At the trial of this case to the court, the only testimony as to the value of the motor vehicle as of November 30, 1954, was presented by Duffy, who said in his direct testimony that it was worth $2,450. At another time he said it was worth $2,200. It was agreed by the parties that, at the time the automobile was recovered, it was badly damaged and that it was then worth only $435. The trial court rendered a judgment in favor of Duffy for $882.50 and costs. It is from this judgment that each party filed a notice of appeal.

Duffy sets out only one assignment of error, which is that “the amount of the judgment is against the weight of the evidence.” The Company says that: “the judgment is not sustained by sufficient evidence, is against the weight of the evidence, and is contrary to law”; “the trial court erred in overruling defendant’s motion for judgment after plaintiff had rested his case”; there was error in admission of evidence, and other errors appearing in the record of the case.

The first question that must be considered concerns the application of §4505.04 R. C., which, in its pertinent part, reads as follows:

“No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:

“(A) By a certificate of title or a manufacturer’s or importer’s certificate issued in accordance with §§4505.01 to 4505.19, inclusive, R. C.

“(B) By admission in the pleadings or stipulation of the parties.”

We do not find in the bill of exceptions any stipulation of title. The petition says Duffy parked “his 1953 Buick convertible coupe” in the parking lot of the Company. The amended answer frequently refers to this automobile as “his automobile,” meaning the Duffy motor vehicle. There is also a general denial of all allegations of the petition not specifically admitted.

During the trial, both parties referred to the automobile as being the property of Duffy.

Is there an admission as to title in the pleadings?

The word “admission” is defined by Webster’s New International Dictionary, Second Edition, as: “1. Act or practice of admitting * * “3. The granting of an argument or position not fully proved; act of acknowledging something asserted; acquiescence or concurrence in the truth of an allegation;- acknowledgment; concession * * *.” “4. A fact, point, or statement admitted * *

We do not believe that §2309.27 R. C., has any bearing on the problem before us, but it is worthy of note that this statute says that, with certain exceptions, every averment in a pleading not controverted is to be taken as true.

Is it necessary, in order to have an admission within the terms of §4505.04 (R), R. C., that such admission specifically designate an acknowledgment of the fact of ownership, such as a categorical assertion of the fact, or may the admission be made in general terms, such as we find in this pleading?

We know it to be elementary in the law of pleading that an admission in a pleading dispenses with proof and is equivalent to proof of the fact. 3 Jones Commentaries on Evidence (Second Ed.), Sec. 993. This author also says, at page 1824, concerning statements in a pleading, that, “to be admissible as admissions, it is not necessary that such facts should be specifically averred.” Malick v. Kellogg, 118 Wis. 405, 95 N. W. 372; Payant v. Corpus Christi Plaza Hotel Co. (Texas), 149 S. W. 2d 665, at p. 666. See also, IV Wigmore on Evidence (Third Ed.), Sec. 1064.

We therefore determine that the allegations contained in the amended answer of the Company, wherein that amended answer referred in many instances to “his automobile,” referring to the motor vehicle which Duffy, in the petition, alleged was his and which automobile he claimed he parked on the Company parking lot, amounted to and constituted an admission of title within the terms of §4505.04 (R-), R. C.

In consideration of the liability of a parking lot operator for the loss of a motor vehicle placed on such lot in the care of the operator by an owner of an automobile, the law in Ohio is set out in the case of Agricultural Insurance Co. v. Constantine, etc., 144 Oh St 275. See also, 131 A. L. R. 1175, at p. 1184. The facts in the instant case established the relationship of bailor and bailee.

There was no assumption of risk or contributory negligence shown in this case. The parking lot attendant said that, on the days when Duffy left his car, he (the attendant) would lock it, but he did not do so on the day of the alleged theft because, as he stated, it was not left on his lot that day. The trial court, as the trier of the facts, determined that Duffy did leave his car on the parking lot, and that it was stolen because of the negligence of the operator, who, on many other occasions, took complete charge of this automobile when Duffy did not get it before the attendant left the lot.

On the subject of damages, we find, as we stated above, that Duffy was the only person to testify as to the value of the automobile on the day it was stolen. Duffy gave two values, one of $2,450, and the other, $2,200, which was qualified by a statement that he thought his car was in better shape and had more accessories than those being sold for $2,200.

There is no testimony which would justify the trial court in entering a judgment for $882.50. Duffy produced the only conflict in value, since he alone testified on that subject.

We determine that the judgment herein is manifestly against the weight of the evidence, and hence the cause will be reversed and remanded to the trial court for further proceedings.

We have examined all of the claimed errors, and find none prejudicial except such as are hereinabove set out.

Judgment reversed and cause remanded.

STEVENS, PJ, DOYLE, J, concur.


author: By THE COURT.

text:
    COLUMBUS (City), Plaintiff-Appellee, v. EWING, Defendant-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5592.
    Decided April 29, 1957.
    Russell Leach, City Atty., William T. Gillie, First Asst. City Atty., Columbus, for plaintiff-appellee.
    William K. Lohr, Columbus, for defendant-appellant.
    (HORNBECK, J, of the Second District, sitting by designation in the Tenth District.)
   OPINION

By THE COURT.

This is an appeal from a judgment and sentence of defendant-appellant after conviction of a violation of a traffic ordinance of the City of Columbus. The charge was that defendant did unlawfully “back to turn a Studebaker Lie. J.578 from Washington onto McCoy.”

Appellant in oral argument and in brief assigns three errors:

1. The trial court erred in determining that appellant’s act in backing into an intersection was a violation of Section 27.308, of the Columbus City Code.

2. Section 27.308 of the Columbus City Code, when interpreted to absolutely prohibit an automobile backing to turn, is an unreasonable exercise of the police power, has no reasonable relation to public safety, is vague and indefinite and is unconstitutional and void.

3. Section 27.308 of the Columbus City Code is in conflict with the General Law of Ohio and therefore unconstitutional.

The ordinance involved, Section 1285 (now Section 27.308), reads:

“Regulating Turns, etc. A driver of a vehicle shall not back to make a turn or turn between street intersections. Turns commonly known as ‘U’ turns are hereby prohibited.”

At the time this case was orally presented, and in the briefs, counsel set forth what they say is an agreed statement of facts developed at the trial of defendant on the charge.

An examination of the files in the case discloses nothing from the Municipal Court but the transcript of docket and journal entries. There is no bill of exceptions; there is no agreed statement of facts; nor is there anything before us in compliance with the statute §2321.12 R„ C., which brings to the attention of this court the facts developed at the trial or the defense there asserted.

The charge in the affidavit does not state in which direction defendant was moving in Washington Street or into McCoy Street or the direction that he took as he moved onto and along McCoy Street.

To reach any error assigned, we have to take judicial notice not only of Washington Street and McCoy Street, their location with respect to each other, but also of the location of the intersections, whether or not there was an intersection between Washington and McCoy Streets, into which it is charged defendant backed his automobile. If all of this could be done, even then we would not have some of the facts upon which appellant seeks to rely in this court.

It is well recognized that a constitutional question cannot be raised in a reviewing court unless it appears that it was urged in the trial court. 2 O. Jur. (2d), 683; Hoffman v. Staley, 92 Oh St 505; Cuthbertson v. State, et al.. 106 Oh St 658; Zimmerman v. Morris Plan Bank of Cleveland, Ohio, et al., 113 Oh St 703; The Village of Clarington v. Althar, 122 Oh St 608; State v. Miller (Franklin County), 28 Abs 571; Kuhn v. Wood, 34 Abs 265.

We have no authorized way to determine what questions were raised defensively in the trial court and especially whether or not the constitutional question here urged was there set up.

In the situation presented, any opinion of this court would be without the effect of a judgment, and we should not indulge in an expression which would not result in an adjudication of questions properly exemplified by the record.

The appeal will be dismissed.

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


author: By McGinnis, j.

text:
    KIRKBRIDE, Plaintiff, v. ESCHBAUGH, Defendant.
    Juvenile Court, Noble County.
    No. 506.
    John W. Hazard, Caldwell, for plaintiff.
    L. C. Young, Caldwell, for defendant.
   OPINION

By McGinnis, j.

This case is before the court on the motion of defendant to dismiss the complaint. The complaint states that Verna Kirkbride, nee, Martin, gave birth to a bastard child on the 13th day of November, 1955, namely Linda Joy Martin, and that Charles Eschbaugh • is the father of said child and that complainant was unmarried on that date. Upon examination complainant states that she is now married and was at the time of filing this complaint.

Sec. 3111.01 R. C., provides that:

“When an unmarried woman, who has been delivered of, or is pregnant with, a bastard child, makes a complaint in writing, under oath, before a justice of the peace or in juvenile court, charging a person with being the father of such child, the judge or justice shall issue his warrant, directed to any sheriff, police officer or constable commanding him to pursue and arrest such accused person in any county and to bring him forthwith before such judge or justice to answer such complaint.”

The motion before the court asks for the dismissal of the complaint on the grounds that the complainant, upon examination stated that she was a married woman at the time of filing said complaint.

It is true, according to common diction, the whole section seems to be describing an unmarried woman yet it does not state that the complaint must be filed while she is yet unmarried. The language used is unfortunate but to rule that the woman must be unmarried at the time she files her complaint is placing a very narrow meaning on the statute. Its words create a cause of action in the woman if she is unmarried at the time of the birth of the child. She may change her status by marrying or she may become the resident of another county or state, may enter into a marriage of doubtful legality or may be legally married and then divorced which would result in an unmarried state.

Is a cause of action such a will-of-the-wisp that it could vest, divest and revest depending upon the vagaries of the woman? Is the right of the child to support by its real father to be so billowed about in courts designed to administer justice? We think not. It is the opinion of this court that this mother has the right to maintain this action. She is the same person as the unmarried woman who gave birth to the child and the filing is merely a technicality and has nothing to do with the right of action.

Courts are not always confined to the literal meaning of a statute. Legislative intent is the primary consideration even though this can only be accomplished by a departure from the literal interpretation of the language employed so long as that meaning can be discovered from the words of the statute. It is also well settled that punctuation is a fallible standard for the meaning of a statute and the last resort as an aid in the interpretation.

All of this is too well settled to require citation of authority.

There is little help in the decisions in this jurisdiction but our Supreme Court touched upon the question in the 21 Oh St 646 which was in 1867 but under a statute of the same wording. In that case the child was begotten while the complainant was unmarried and born after marriage but the question was raised when she continued prosecution of the action after marriage. The court held that she had the right to maintain her action after marriage. If a cause of action still existed after marriage and an action could be maintained then it follows that the action could also be started after marriage. In that case it was not shown that the husband had the knowledge of her condition at the time of marriage and under the law this was the turning point.

It is true that one case in this state held otherwise. It came from Montgomery County and the Court of Appeals of the Second District, as reported in Ohio Law Abstract, 55 v 191 in 1949 decided that a nisi prius decision should be sustained which held that a married woman could not file an affidavit charging the defendant with being the father of a bastard child, and that a bastardy action could only be brought by an unmarried woman.

In that case the court held that the rules of construction require the statute to be strictly construed as in criminal actions even though it was an action which was not brought in the name of the state, is called quasi-criminal for the reason that the defendant can be arrested and held although the trial is not on a criminal charge and a verdict can be returned by nine of the twelve jurors as in civil cases. The purpose of the action is, not to punish the defendant, but for the enforcement of a moral duty.

In Ohio there are several other cases, one in the Supreme Court, where the court has talked and some in which the syllabi state the rule, all to the effect that only an unmarried woman can file such a complaint, also the texts so expound the rule in Ohio but a study of each case except the one from Montgomery County, shows that the decision was not made on this question and therefore is not law but mere dicta. Motion overruled.


author: Per CURIAM.

text:
    ANDREWS, Plaintiff-Appellee, v. YOUNGSTOWN OSTEOPATHIC HOSPITAL ASSOCIATION, d. b. a. CAFARO MEMORIAL HOSPITAL, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3866.
    Decided November 1, 1956.
    L. C. Hartwell, Youngstown, for plaintiff-appellee.
    George M. Jones, Youngstown, Charles J. Chastang, Columbus, for defendant-appellant.
   OPINION

Per CURIAM.

This is an appeal by defendant upon questions of law from a judgment for $4500.00 rendered for plaintiff against defendant for damages for personal injuries allegedly suffered as a result of defendant’s negligence. The defendant is a non-profit charitable osteopathic hospital incorporated under the laws of Ohio.

The trial judge overruled defendant’s motions for a new trial and for judgment in its favor notwithstanding the verdict of the jury.

On July 4, 1954, while not on duty, plaintiff cut her leg on a barbed wire fence and received first aid treatment from persons unknown to her.

Plaintiff reported for duty at defendant hospital on July 5, 1954, and after informing her superior of the condition of her leg, her superior referred her to an intern employed by defendant, who cleaned plaintiff’s wound, subjected her to a skin test to determine sensitivity to a tetanus antitoxin, which he testified was negative, and administered tetanus antitoxin to her.

Plaintiff continued to work at defendant’s hospital for ten or eleven days therafter, and then suffered from “serum sickness,” which plaintiff contends resulted directly and proximately from the negligence of defendant’s intern in the administration of the tetanus antitoxin and from not waiting sufficiently long after making such test before administering such tetanus antitoxin.

In the case of Avellone v. St. John’s Hospital, 165 Oh St 467, decided July 18, 1956, it is said:—

“A corporation not for profit, which has as its purpose the maintenance and operation of a hospital, is, under the doctrine of respondeat superior, liable for the torts of its servants. (Taylor, Admr., v. Protestant Hospital Assn., 85 Oh St 90, Rudy v. Lakeside Hospital, 115 Oh St 539, and paragraphs one and two of the syllabus of Lakeside Hospital v. Kovar. Admr., 131 Oh St 333, overruled.)

“In an action to recover damages for injury to a patient alleged to have been caused by the negligence of a nonprofit hospital, an answer filed by the defendant, which alleges that it is a corporation not for profit maintaining and operating a public charitable hospital, does not state a defense and is subject to demurrer.”

By the above decision the supreme court overruled the doctrine of immunity of so-called public charitable institutions from liability for the negligence of its agents and servants which such institutions had long enjoyed.

The decision of the supreme court having been made subsequent to trial of the case we review, the case was tried in accordance with the effective law at time of trial, and defendant’s errors are based thereon.

We believe that by reason of the decision of the supreme court in the case of Avellone v. St. John’s Hospital, supra, we need not pass upon defendant’s third and fourth assigned grounds of error, but we shall proceed to do so as we construe plaintiff’s petition to be sufficiently broad to comprehend the rule governing defendant’s liability in employing and retaining an alleged incompetent intern existing at the time of trial.

There is evidence that the intern, who graduated as a doctor of Osteopathy in June 1954, and entered defendant’s service shortly thereafter, had been instructed as to his authority to act for defendant hospital by a manuscript published by and furnished to him by defendant, concerning which instruction he testified as follows:—

“Q. Now, Doctor, which of the officers instructed you that it was not necessary for you to obtain an order, in order for you to practice injections or practice medicine?

“A. I received, after my internship, a folder, I mean a manuscript, as to my instructions, and in it, it contained that in case which I felt that I was fully capable, it was not necessary to call the staff man, and if I did not feel capable and if the injury involved tendons and muscles I was to call the man on service at that time.”

In his general charge to the jury the trial judge said:—

“The court also instructs you, however, that the defendant’s employee, that is, the intern, was a representative and agent of the defendant hospital, acting within the scope and course of his employment, and that the acts of the intern while engaged in such employment and service were chargeable to the defendant Cafaro Hospital.”

Defendant contends the trial judge erred to its prejudice in so charging the jury because there is no evidence in the record to support plaintiff’s contention that Dr. Cannane, in administering tetanus antitoxin to her, was acting under instruction from and supervision of defendant.

The evidence is clear that the intern entered defendant’s service on July 1, 1954, and acting under written instructions of defendant and by his act in treating plaintiff believed himself capable of rendering the type of medical treatment he rendered plaintiff.

In 26 O. Jur., Page 612, Section 587, Master and Servant, it is said:—

“The master’s liability is not dependent upon the exercise of negligence in employing the servant, or of his knowledge or notice that the servant was an unfit person for the employment, but is based rather upon the doctrine of respondeat superior, which makes the master responsible for the acts, of the servant done in the discharge or performance of his business. The act of the servant done within the scope and in the exercise of his employment is, in law, the act of the master himself. The rule of respondeat superior rests on the power which the superior has a right to exercise, and which, for the protection of third persons, he must exercise, over the acts of his subordinates. The negligence of an employe is imputable to the employer, on the reasoning that, when the employer has such power and control over the acts of an employee, it becomes his duty to exercise that power and control so as to prevent injury to others. The theory is that the thing the servant is doing is done in obedience to the master’s will. He is acting as an arm of the master, responding to the master’s volition, and his tort is therefore the master’s tort. The liability of the master grows out of the act of the servant, and is his liability because of the relationship of master and servant, and the servant, because he is acting as the arm of the master, by his tort may create a liability of the master, to which the master may be compelled to respond.”

While the quoted language taken from 26 O. Jur., Section 587, applied to the subject of master and servant, the Supreme Court in Avellone v. St. John’s Hospital, supra, has proclaimed the same doctrine of liability to non-profit charitable organizations as applied to master and servant causes generally.

The trial judge did not commit error prejudicial to defendant in the portion of his charge quoted supra.

With further reference to the general charge to the jury defendant contends that the trial judge erroneously enlarged upon the duty which defendant owed plaintiff, that the statement in such charge “he must not be hired and simply turned loose to perform any service he desires, regardless of the scope or range of such service” had an inflammatory affect upon the minds of the jury, by saying to the jury:—

“In this case the law is that to enable plaintiff to recover she must establish, among other things, by the greater weight of the evidence, that the defendant hospital failed to use ordinary care in the selection, instruction, or retention of the employee intern if the hospital authorities knew or in the exercise of ordinary care should have known of his incompetence to render the service which he would likely perform in the employment or retention. The institution must use ordinary care to determine the fitness of the employee and must use ordinary care to instruct him in his duties and of the authorized scope of his duties, the area of his authorized service and similar matters relating to the service which he was to perform. He must not be hired and simply turned loose to perform any service he desires, regardless of the scope or range of such services. He must be instructed in regard to his duties and those instructions must be sufficient so that he will, by the exercise of ordinary intelligence, himself understand what his duties are and what his range of activities may be. This involves the determination of a question of fact by the jury.”

In view of the doctrine proclaimed by the Supreme Court in Avellone v. St. John’s Hospital, supra, we cannot say that the quoted charge of the trial court was prejudicially erroneous as to the defendant. Indeed, it would seem to be more favorable to the defendant than to the plaintiff.

From a careful review of the evidence we conclude that the trial judge did not err to defendant’s prejudice in overruling defendant’s motions for a directed verdict made at the close of plaintiff’s case and at the conclusion of all the evidence and for judgment in its favor notwithstanding the verdict of the jury, as in our opinion questions were presented for the consideration of the jury as to whether plaintiff had an idiosyncrasy to tetanus antitoxin injections, and as to whether defendant negligently employed such intern, and whether such intern negligently administered tetanus antitoxin to plaintiff while acting within the course and scope of his service with defendant, which negligence directly and proximately caused and produced her serum sickness.

We find no merit in defendant’s contention that the jury ignored the evidence or law with reference to proximate cause as charged by it and cannot conclude that the verdict of the jury and judgment of the trial judge are against the manifest weight of the evidence.

We believe reasonable minds could reach different conclusions upon each of the controlling issues in this case, and as to whether such intern administered such injection to plaintiff pursuant to authority granted by it in obedience to instructions from defendant.

Appellant’s counsel has failed to call our attention to “other errors apparent in the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that its briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concur.


author: By THE COURT: By HORNBECK, J.

text:
    BRUST, Plaintiff-Appellee, v. INTERNATIONAL HARVESTER COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 528.
    Decided November 13, 1956.

      Kenneth Agee, Robert Dow Hamilton, Columbus, for plaintiff-appellee.
    Vorys, Sater, Seymour & Pease, John C. Elam, of Counsel, Columbus, for defendant-appellant.
   OPINION

By THE COURT:

This is an action in which the plaintiff is seeking the right to participate in the benefits accorded to an injured employee under the provisions of the Workmen’s Compensation Act, the defendant being a self-insurer. The principal error relied upon by counsel for the appellant has been stated by him as follows:

2. The Court of Common Pleas erred in overruling the motion of the defendant to render judgment in favor of the defendant upon the special verdict returned by the jury.

The record reveals that the jury returned the following special verdict upon which judgment for the plaintiff was rendered, to wit:

“Upon the issue as to whether or not the plaintiff at the time and place alleged in his petition sustained an injury, we find: That the plaintiff did sustain an injury on Nov. 23, 1948 in the course of performing his duty while employed at the plant of International Harvester Co.

“And upon the issue as to whether or not the plaintiff at the time and place alleged in his petition, sustained an accidental injury, we find: The facts in this issue to sustain the aforesaid statement.

“And upon the issue as to whether or not at the time and place alleged in his petition, the plaintiff sustained an injury which was accidental in character, and in the course of and arising out of his employment, or an injury which occurred in or resulted from the usual and normal activity of his employment, we find: after due consideration and weighing all the evidence presented by defendant and plaintiff and the instructions of the court, we find the plaintiff sustained an injury which was accidental in character and in the course of and arising out of his employment.”

The question presented is whether or not the jury found ultimate facts on all of the issues which were so clear, consistent and complete that a proper judgment could be rendered from the pleadings and facts found without reference to the evidence disclosed by the record. See Dowd-Feder v. Schreyer, 124 Oh St 504. It must be conceded that the jury found on all of the issues raised by the pleadings; hence the question for determination is the nature of its findings, to wit:

1. Are they ultimate facts which support the judgment, or

2. Are they merely legal conclusions or mixed conclusions of law and fact?

Counsel for the appellant urges that they fall within the latter classification, and cites the recent case of Landon v. Lee Motors, 161 Oh St 82, which reviews the former decisions of the Supreme Court on the question. The Court here agreed with the Court of Appeals that the following special findings were improper mixed findings of law and fact:

“Defendant could and should, in the exercise of ordinary care, have ascertained that said kingpin was broken, and should have replaced the same.

“Defendant failed to exercise reasonable care in said particulars.

“Each of the foregoing acts and omissions of the defendant constituted negligence.

“Plaintiff was not himself negligent.”

It will be noted that these objectionable findings refer to the terms “ordinary care,” “reasonable care” and “negligence.” These terms are mere legal conclusions and when used in a pleading are subject to motion to make definite and certain. The findings in the case at bar are concise and pertinent to the issues presented.

In Looker v. Martin, 61 Abs 373, the court held that the special verdict “must fairly and fully respond to the material issues in the case.” In looking to the issues raised in the case at bar we find them to be, (1) Was the claimant injured as alleged in his petition? And (2) Was the injury sustained in the course of and arising out of his employment? And (3) Whether or not the injury was the result of an accident. These were the determinative issues or ultimate facts to be proven and when the jury determined from the evidence that the plaintiff did sustain an injury, that said injury was an accidental one, and that it was sustained in the course of and arising out of his employment, the only remaining thing to be done by the court was to apply the law to the facts found. What the evidentiary facts were that led the jury to its decision are not material. The exact nature of the injury is not in issue to be determined in this case, and neither is the exact duty he was performing. The jury did, however, find the ultimate facts from which in conjunction with the pleadings, conclusions of law could be drawn and judgment entered without reference to the evidence disclosed by the record.

The first assignment of error is grounded upon the premise that the plaintiff failed in his proof that the injury was accidental in origin, it having been conclusively established that he was regularly engaged .in his usual and customary type of employment at the time of injury.

We have examined the entire record on this question and are of the opinion that it contains sufficient evidence, if credence were given to the same, to establish this fact. We concur in counsel’s extensive argument that such proof is necessary in order to entitle the plaintiff to participate in the fund. Hence the real question presented was a factual one.

Finally it is urged that the court erred in its charge to the jury in defining the terms “injury” and “accidental injury.” We find that the terms were properly defined and even if it were not necessary and proper that these definitions be given to the jury, it could not have been prejudicial.

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

MILLER, PJ, WISEMAN, J, concur.

DISSENTING OPINION

By HORNBECK, J.

I dissent to the finding that the second and third paragraphs of the special verdict are sufficient to support the judgment. The issue of fact as to the accidental injury is not resolved as is required in a special verdict.


author: By CASE. J.

text:
    LAWWILL, Plaintiff, v. KNISLEY, Defendant.
    Common Pleas Court, Fayette County.
    No. 22152.
    Decided July 31, 1957.
    Reed M. Winegardner, Washington C. H., Richard Huggard, Columbus, for plaintiff.
    Junk & Junk, Washington C. H., for defendant.
   OPINION

By CASE. J.

This cause is before the court upon defendant’s demurrer to plaintiff’s amended petition herein.

Plaintiff’s amended petition reads as follows:

“At all times hereinafter mentioned, Ohio State Route 70 was a public highway extending in a general northwesterly and southeasterly direction in and through the County of Fayette, State of Ohio.

“On or about August 8, 1954 at approximately 1:00 to 2:00 A. M., plaintiff was a passenger in an automobile owned and operated by defendant in a southeasterly direction on said Ohio Route 70, in Fayette County, northwest of Washington Court House, Ohio. As defendant at said time and place operated said automobile at a speed of approximately 75 miles per hour around and through a right hand curve in said road, he lost control thereof, and said automobile skidded partly off the road and upon the berm thereof. Although plaintiff thereupon protested to defendant about the speed at which said car was being operated and its manner of operation, defendant failed to heed said protest, accelerated the speed of said automobile, and drove it into and through a subsequent left hand curve. In driving around said second curve, defendant again lost control of said automobile and said automobile again skidded partly off the road and upon the berm thereof. Plaintiff renewed his protests as to the speed in which said automobile was being operated, and as to the defendant’s manner of operation. Defendant, however, refused to heed said protests, laughed, and stated ‘Oh, this buggy will stick to the road,’ and on emerging from the said curve, further accelerated the speed of said automobile to approximately 85 miles per hour, plaintiff during said time continuing his said protests. Defendant then operated said automobile at a speed of 85 miles per hour, into a third right hand curve ignoring plaintiff’s continuing protests. In attempting to make said curve, defendant lost control of his car completely, and said automobile skidded down said road in a southerly direction, crossed said road to defendant’s left hand side thereof, left said road, went down in a ditch, emerged therefrom, and crashed through an iron picket fence enclosing a cemetery on the northerly side of said road, traveling, in all, since beginning to skid at said third curve, a distance of over 400 feet, throwing plaintiff about, in, and from said car and injuring him, as will be more particularly hereinafter set out. Prior to this occurrence, defendant had lived in said vicinity many years, and had traveled over said road and through said curve on numerous occasions.

“As a direct and proximate result of defendant’s aforesaid wanton misconduct, plaintiff received an extensive laceration of the biceps region, requiring approximately fifty stitches in the repair thereof, a compound fracture of the right elbow, requiring surgery for its treatment and repair, a gash in his head, a cerebral concussion, an injury to his back, the exact nature of which he is unable to state, multiple bruises, contusions and abrasions, and a severe nervous and physical shock. Said injuries required plaintiff to be hospitalized and to submit to treatment and medical attention for a period of approximately three months thereafter. Said injuries and the results thereof are permanent.

“In the treatment of said injuries, plaintiff has incurred medical, surgical and hospital expenses in the amount of Two Hundred Ninety Six and 49/100 ($296.49) Dollars, and plaintiff believes and avers that he will be obliged to incur further similar expenses in the future, the exact amount of which he is unable to state at this time.

“Prior to receiving said injuries, plaintiff was employed at the plant of Delco Products, Division of General Motors, Dayton, Ohio and earned from $75.00 to $100.00 per week. As a further direct and proximate result of defendant’s aforesaid wanton misconduct, plaintiff lost thirty weeks’ work and the earnings therefrom. Since returning to work, plaintiff has been unable to work in the manner or to the extent that he did before.

“By reason of the matters herein set out, plaintiff has been damaged in the sum of Fifty Thousand and no/100 ($50,000.00) Dollars.

“WHEREFORE, plaintiff prays that he may have judgment against defendant in the sum of Fifty Thousand and no/100 ($50,000.00) Dollars, together with his costs herein expended.”

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

“Now comes the defendant and demurs to the plaintiff’s amended petition and for reason therefore says that the amended petition does not state facts sufficient in law to constitute a cause of action against this defendant.”

“MEMORANDUM IN SUPPORT OF DEFENDANT’S DEMURRER

“Plaintiff in his petition alleges that he received certain injuries as a direct and proximate result of defendant’s wanton misconduct. The law of Ohio seems to be well settled that when a plaintiff alleges that his recovery is based upon the willful or wanton misconduct of a defendant that he must allege facts that reveal on their face the element of wilfulness or wantonness, else such pleading is demurrable.

“Vecchio v. Vecchio, 131 Oh St 64, states: ‘If wanton misconduct is relied upon for recovery in an action for damages for personal injury, facts must be pleaded which reveal on their face the element of wantonness.’ See also the case of Davis, Appellant, v. Moor, et al., Appellees, 86 Oh Ap 213. Thus our next step is the definition in Ohio of wanton misconduct. The definition of wanton misconduct as approved by the Courts in the State of Ohio is as follows: ‘Wanton misconduct is such conduct as manifests a disposition to perversity, and it must be under such surrounding circumstances and existing conditions that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances and existing conditions, that his conduct will in all common probability result in injury.’ This definition is set out in the case of Helleren, Admx., Appellee, v. Dixon, Appellant, 152 Oh St 46. From this definition it is apparent that one of the elements in alleging ‘wanton misconduct’ is that the party doing the act or failing to act must be conscious, from his knowledge of such surrounding circumstances were existing conditions, that his conduct will in all common probability result in injury. The allegations set out in plaintiff’s amended petition herein clearly on their face do not meet that test, in fact plaintiff by his own allegations shows clearly that defendant believed that his conduct could not possibly result in any injury or damage. Plaintiff by his own allegations in lines 17 and 18 of the second paragraph of his amended petition alleges that defendant ‘laughed, stating oh, this buggy will stick to the road.’ Certainly these are not the remarks of a person who is conscious of any imminent danger. Thus plaintiff by his own allegations clearly does not bring this fact within the definition of wanton misconduct as defined and required by the law of Ohio, and therefore does not state a cause of action in this amended petition.”

This court has studied and considered the opinion of Judge Stephenson in the Vecchio case, referred to in defendant’s memorandum, and notes that the allegations and specifications of such petition therein with respect to the operative facts stated and set forth concerning the defendant being “wantonly negligent” are clearly distinguishable and substantially different in their character and appellation from the operative facts stated and referred to in plaintiff’s amended petition herein as “wanton misconduct.”

Sec. 2309.40 R. C., provides as follows:

“The allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties.”

In its repeated consideration of such statutory provisions, the Supreme Court of Ohio has held that as against demurrer a liberal construction of a petition in favor of the pleader is required, and, furthermore, that a court will indulge every reasonable inference, from the facts alleged, to sustain the. petition. Humphries v. Wheeling Steel Corp., 132 Oh St 263, 8 O. O. 38, 7 N. E. 2d 230; Gugle v. Loeser, 143 Oh St 362, 28 O. O. 318. 55 N. E. 2d 580.

It is axiomatic that a demurrer to a petition admits, for the purpose of such demurrer, the truth of all allegations contained in said petition which are well pleaded, and in ruling upon such demurrer the court must assume the truth of such facts so pleaded in the petition (Rittenhouse v. Holford, 75 Abs 138, 140 N. E 2d 84); and that; “A pleading must be construed as an entirety, and effect given to every well-pleaded allegation,” as stated by Judge Zimmerman in Kennard v. Palmer, 143 Oh St 1, at page 6.

Therefore, for the purpose of defendant’s demurrer herein, the various speeds stated and the manner in which defendant’s auto allegedly skidded at the respective curves together with the defendant’s alleged continuous course of conduct over the alleged repeated protests of plaintiff, are all admitted by defendant’s demurrer to be true. And, upon applying the liberal construction rule to said allegations and all other allegations of plaintiff’s amended petition which are well pleaded, and upon indulging every reasonable inference from the operative facts so alleged, this Court is confronted with the basic question of whether said amended petition states sufficient operative facts “to constitute a cause of action against this defendant.”

In determining this question, the Court has studied and considered the authorities cited in defendant’s memorandum, and has also considered Jenkins v. Sharp, 140 Oh St 80, 23 O. O. 295, 42 N. E. 2d 755, wherein the court held that the question of whether defendant was guilty of wanton misconduct within the meaning of the Guest Statute (§6308-6 GC; §4515.02 E. C.), is for the determination of the jury under instructions of the trial court.

In the Jenkins case, supra, beginning at page 83, Judge Williams states in part as follows:

“The inquiry here is somewhat narrowed and pertains to the respective rights and obligations of the operator of a motor vehicle moving forward on a public highway and a guest riding therein. With respect thereto the rule has been stated in Morrow v. Hume, Admx., supra, at page 324, in this manner: * * wantonness can never be predicated upon speed alone; but when the concomitant facts show an unusually dangerous situation and a consciousness on the part of the driver that his conduct will in common probability result in injury to another of whose dangerous position he is aware, and he drives on without any care whatever, and without slackening his speed, in utter heedlessness of the other person’s jeopardy, speed plus such unusually dangerous surroundings and knowing disregard of another’s safety may amount to wantonness.’

“In the case at bar the defendant’s state of mind is disclosed by the circumstances that transpired before and at the time of the accident. * * *”

In the instant case, plaintiff’s amended petition alleges that defendant was operating his automobile at a speed of 75 miles per hour around and through a right hand curve in the night season so that the auto skidded partly off the road and upon the berm; that, although plaintiff thereupon protested to defendant about the speed and manner of defendant’s operation thereof, defendant failed to heed said protest, accelerated the speed of said automobile and drove it into and through a subsequent left hand curve where it again skidded partly off the road and upon the berm; that plaintiff renewed his protests as to the speed and manner in which said auto was being operated by defendant; that defendant again refused to heed said protests, laughed, and stated “Oh, this buggy will stick to the road,” and on emerging from said curve further accelerated the speed of said automobile to approximately 85 miles per hour, plaintiff during said time continuing his said protests; that defendant then operated said automobile at a speed of 85 miles per hour into a third right hand curve ignoring plaintiff’s continuing protests; and that in attempting to make said curve defendant lost control of his car completely, and said automobile skidded down said road in a southerly direction, crossed said road to defendant's left hand side thereof, left said road, went down in a ditch, emerged therefrom, and crashed through an iron picket fence on the northerly side of said road, travelling, in all, since beginning to skid at said third curve, a distance of over 400 feet, throwing plaintiff about, in, and from said car and injuring him.

Since the truth of these allegations are admitted for the purpose of defendant’s demurrer, it is reasonable to infer therefrom that the defendant’s state of mind was clearly alleged to be such, under the facts and circumstances so stated, as to state essential facts sufficient in law to constitute a cause of action within the meaning of the Guest Statute (§4515.02 R. C.)

What the evidence may develop at the time of trial is another matter and is of no present concern; and this is particularly true with respect to defendant’s contention that his alleged remark: — “Oh, this buggy will stick to the road,” fails to state or show that defendant was conscious of any imminent danger.

In Tighe v. Diamond, 149 Oh St 520, 37 O. O. 243, 80 N. E. 2d 122, the Supreme Court of Ohio held in part as follows:

“5. In an action by an automobile guest against his host driver for personal injuries, unless the facts are undisputed, the question whether the host driver intentionally drove the automobile with wilful disregard of the probable results of such driving or whether he intentionally drove the automobile with knowledge, actual or implied, that serious injury would probably result to the guest, is ordinarily one of fact for the determination of the jury.”

Judge Hart’s opinion in the Tighe case, supra, states in part as follows beginning at page 530:

“Under this state of the record, there is clear evidence that Earl Diamond deliberately and intentionally planned to rush over the hump in the road at a rate of 60 miles an hour and throw the car up in the air so that its leap and landing would give his passengers a thrill. Was this wilful misconduct? Undoubtedly, there was no intent to injure his passengers, or himself, but did he, from his age and experience, have the capacity to appraise his conduct and appreciate its consequences? If so, was there an intent and purpose to carry out a scheme of conduct which was clearly wrong and which he should have recognized as violative of his duty necessary for the safety of the plaintiff as his passenger? Was his scheme of conduct such as to make him conscious, from his knowledge of the existing conditions, that injury to the plaintiff would likely or probably result and did he, with such knowledge and consciousness and indifference to consequences, proceed to carry out such scheme of conduct? These questions, if reasonable minds could differ as to their answers, were questions of fact lying wholly within the province of the jury.

“In an action by an automobile guest for personal injuries, the question whether the driver intentionally drove the automobile with wanton and reckless disregard of the possible results of such driving, or whether he intentionally drove the automobile with knowledge expressed or implied that serious injury would probably be the result thereof, is one of fact for the determination of the finder of the facts. Kennard, a Minor, v. Palmer, 143 Oh St 1, 53 N. E. (2d), 908.”

Upon due consideration of all of the allegations contained in plaintiff’s amended petition, together with all the issues raised by defendant’s demurrer, and the rules of law applicable thereto, this court must conclude 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 granting defendant leave to answer by September 5, 1957, and with appropriate exceptions noted therein on behalf of defendant; and thereupon submit same to counsel for defendant and to this court for approval by on or before August 10, 1957.


author: By DEEDS, J.

text:
    JONES, Appellant, v. GAREK et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 5353.
    Decided March 6, 1956.
    David E. Morgan, Columbus, for appellant.
    Chalmers P. Wylie, City Atty., Russell Leach, Senior Asst. City Atty., Columbus, for appellees.
    (DEEDS, J, of the Sixth District, sitting by designation in'the Second District.)
   OPINION

By DEEDS, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas affirming the decision of the Municipal Civil Service Commission, which affirmed the removal of appellant as an employe of the Division of Fire of the City of Columbus.

Sec. 143.27 R. C., provides the causes for which an employe in the classified service may be removed and prescribes the procedure to be followed in order to secure the removal of an employe as follows:

“The tenure of every officer or employee in the classified service of the state and the counties, cities, and city school districts thereof, holding a position under §143.01 to §143.48, inclusive, R. C., shall be during good behaviour and efficient service; but any such officer or employee may be removed for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the commission, or any other failure of good behaviour, or any other acts of misfeasance, malfeasance, or nonfeasance in office.

“In all cases of removal, the appointing authority shall furnish such employee with a copy of the order of removal and his reasons for the same, and give such officer or employee a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employee shall be filed with the commission. Any such employee so removed may appeal from the order of such appointing authority to the state civil service commission or the municipal civil service commission, as the case may be, within ten days after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision is final. In the case of the removal of a chief of police or a chief of the fire department or any member of the police or fire department of a city an appeal may be had from the decision of the municipal civil service commission to the court of common pleas of the county in which such city is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission.”

The amended order of removal made by the Director, Department of Public Safety, which was received by appellant, contained the following;

“Dear Mr. Jones:

“AMENDED ORDER OF REMOVAL

“Following your suspension by the Chief of the Division of Fire, Department of Public Safety, on December 14, 1952, I duly conducted an inquirv upon the receipt of said suspension order.

“That inquiry, made December 23, 1952, showed that you were in violation of the general rules and regulations of the Division of Fire, to wit:

“(1) In that Firefighter John L. Jones on November 24, 1952, did wilfully violate a house rule of No. 8 Fire Station by making a purchase and charging the same to No. 8 Fire Station personnel without seeking or securing permission of any officer at No. 8 Fire Station.

“(2) In that Firefighter John L. Jones on December 8, 1952, did show disrespect for a superior officer of the division of Fire, by his manner, his tone of voice, and the use of abusive language at No. 8 Fire Station, in violation of Rule 2, Par. 16 (For using indecedent, profane. or harsh langauge while on duty or in uniform) and Par. 17 (For any disrespect shown to any superior officer in the division).

“(3) In that Firefighter John L. Jones, did on November 7, 1952, demonstrate a belligerant and disrespectful manner to his superior officer, when requested to check his fire coat for a. missing flashlight a¡t No. 8 Fire Station, in violation of Rule 12 (Obedience must be prompt, implicit, unqualified, and unequivocal).

“(4) That said Firefighter John L. Jones, did on November 23, 1952, show disrespect to his superior officer in failing to comply with a suggestion in accordance with rules and regulations of the Division of Fire by not stating the reason for a request for time off duty upon making application due to the death of his brother, in violation of Rule 2, Par. 17.

“(5) All the above tending to show on the part of Firefighter John L. Jones an utter disregard of authority.

“(6) All the above tending to show that Firefighter John L. Jones’ conduct was subversive to the good order and discipline of the Division of Fire in violation of Rule 2, Par. 20 (For conduct subversive of the good order and discipline of the division).

“(7) And further, upon his suspension by Deputy Chief S. H. Zaayer, acting upon the orders of Chief Walter G. Strickfaden, said John L. Jones did wilfully violate Rule 2, Par. 10 of the rules and regulations of the Division of Fire (For wilful disobedience of any order issued to him by any superior officer in the division) by wilfully disobeying the order of Deputy Chief Zaayer to leave his badge with his superior officer in charge of No. 8 Fire Station before he left quarters, and further violation of rules rendering him Guilty of Insubordination.

“Accordingly, you are hereby notified that pursuant to §486-178 GC, and for the.above reasons, I hereby order your removal and dismissal from the Division of Fire, Department of Public Safety, effective at the close of business December 13, 1952, which was your date of suspension from duty.

“You are hereby requested to make and file in my office, Room 222, City Hall, a written explanation of the above charges within ten (10) days of receipt of this order, .at which time such removal order and explanation will be filed with the Civil Service Commission of the City of Columbus pursuant to law.

“You have the right to appeal this order to the Civil Service Commission pursuant to §486-17a GC.

Yours Truly

Donald C. Cook, Director

Department of Public Safety

DDC:EC:acp cc Fire

Civil Service

Auditor

Mr. Cox

minutes

THIS IS TO’ ACKNOWLEDGE RECEIPT OF THE ABOVE ORDER THIS ________ DAY OF FEBRUARY, 1953.

John L. Jones

1377 Atcheson Street”

The explanation and answer of the appellant, John L. Jones, to the amended order of removal, is as follows:

“Donald D. Cook, Director,

“Department of Public Safety ■

•‘•'Room 222, City Hall “Columbus, Ohio

“EXPLANATION AND ANSWER OF JOHN L. JONES-

“Dear Sir:

“Receipt is acknowledged of a paper writing dated February 24, 1953, addressed to John L. Jones, 1377 Atcheson Street, Columbus, Ohio, and signed by Donald D. Cook, Director, Department of Public Safety. Said paper writing is styled ‘Amended Order of' Removal.’

“In view of the explanation heretofore filed with you on or about January 12, 1953, and which Explanation is incorporated herein by reference, it is unnecessary to set forth herein the history of this matter.

“Since it is recognized by you that the original order of removal, dated December 14, 1952, was insufficient, it is respectfully submitted that such order being a nullity, it is therefore void and of no effect and not susceptible of amendment.

“In connection with this statement your attention is invited to the case of King v. Cole, decided by the Court of Appeals for Franklin County, Ohio, on May 17, 1945, and reported in 44 Abs 60. Herein the court at page 64, makes the following statement:

“ ‘In the case of City of Toledo v. Osborn, 23 Oh Ap 62, the plaintiff had been removed but no reason had been assigned for the discharge. The Court pointed out that it was the legal right of a Civil Service employee to hold office during good behaviour and efficient service. The Court in holding the discharge void, said at page 65:

“ ‘ “In the instant case it is apparent that the removal of the plaintiff from his. position was void, as the notice of removal, containing as it did no reasons whatever therefor, was not in compliance with the provisions of the section referred to. The pretended hearing on the part of the civil service commission was also illegal for two reasons: In the first place there was no valid order from which an appeal could be taken within the ten-day limitation provided by statute. All proceedings, therefore, taken by the appointing officer and the civil service commission toward the ousting of the- plaintiff from his position were an absolute nullity. State, ex rel. Brittain v. Board of Agriculture, 95 Oh St 276, 116 N. E. 459; State, ex rel. Bay v. Witter, 110 Oh St 216, 221, 143 N. E. 556.’”

“In view of the above, it is therefore requested that both the purported original order of removal dated December 14, 1952, and the purported amendment thereof dated February 24, 1953, be dismissed and held for naught.

Very truly yours,

John L. Jones.”

We find and determine from a careful examination of the more than four hundred pages of testimony and numerous exhibits received in evidence in the hearing on appeal before the members of the municipal Civil Service Commission, contained in the record now before this Court for review, that the cause for removal was sufficient; that appellant was accorded a fair and impartial hearing free from prejudicial error and this Court therefore approves the written opinion of Judge Reynolds and affirms the judgment of the Court of Common Pleas.

Judgment affirmed and cause remanded.

MILLER, PJ, HORNBECK, J, concur.