author: By CARPENTER, J.:

text:
    MORRIS, Plaintiff-Appellee, v. CLEVELAND HOCKEY CLUB, INC., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21928.
    Decided January 8, 1951.
    Payer, Bleiweiss, Crow & Mollison, Cleveland, for plaintiffappellee.
    Hauxhurst, Inglis, Sharp & Cull, Cleveland, for defendant-appellant.
    (CONN, PJ, CARPENTER and FESS, JJ, of the Sixth Appellate District sitting by designation in the Eighth District.)
   OPINION

By CARPENTER, J.:

During the evening of February 18, 1948, the plaintiff, while attending an ice hockey game at defendant’s Arena in Cleveland, was struck above the eye by a flying puck. Several bones in his face were fractured and for the resulting damages he was awarded a verdict and judgment for $22,500.00. From that judgment defendant took this appeal on questions of law.

Apparently Ohio has no reported decision dealing with the relationship of an injured spectator of a professional ice hockey game to the management, hence some information about that sport will be in order as a background of this discussion.

As played that night in defendant’s Arena, hockey was a rugged game played by professionals as a public entertainment for the profit of the defendant.

The Cleveland players, the Barons, were one of the ten clubs of the American Hockey League. That night they were playing the team representing Philadelphia in that league. A team is usually composed of about seventeen players, but only six are on the ice playing at one time.

There are standard rules and regulations for the equipment and playing. The ice rink is required to be approximately 200 feet long and 85 feet wide. Ten feet from each end in the center is a netted goal. Each team defends one of the goals, and one of its players guards the goal while the other five men defend their goal on the rink and seek to drive the puck into the goal of the opposition. The puck is a hard vulcanized rubber disk one inch thick and three inches in diameter. Each player uses a hockey stick with a long handle and a curved striking blade about fifteen inches long.

A solid board wall 3% to 4 feet high surrounds the ice rink, its corners are curved some. In this Arena, back of this board wall and rising amphitheater-like were the spectators’ seats. There were 33 rows around the whole Arena. Above the board wall at the ends and around the curved corners there was a wire screening about 6 feet high to protect spectators in the seats behind it from flying pucks. The proximity to the goals increased this hazard. Above the board wall on the sides there was no screening or other protection to spectators seated there. In the middle on each side was a space of about two rows of seats, for ten feet, occupied by members of the teams when not on the rink; also a small space to be occupied by players when out of the playing on penalties.

The plaintiff occupied a reserved seat in the row back of the visiting players’ section. It was about 6 feet from the board wall. A friend, who had had a season’s reservation on that seat, had given him the ticket for that night.

Plaintiff had never witnessed a hockey game and testified that he knew nothing about it. He was a bank clerk and his avocation was music, not sports.

A game of hockey is played in three periods of 20 minutes each, with ten minute intermissions between the periods. The injury to the plaintiff happened in the third period of play. The evidence indicated that the puck which struck the plaintiff came from a point to his right and 15 to 25 feet in front of him where several opposing players were contending over it. The plaintiff did not see it before it hit him. Up to that time in that game no flying puck had been driven over the board wall and into a spectator section. The defendant in no way had warned spectators of the hazard of flying pucks.

The negligence alleged in the petition was that the defendant:

“Failed and neglected to provide a reasonably safe theater or arena for paying spectators attending the hockey contests sponsored by it.
“It failed and neglected to provide and equip the sides of said Arena * * * with wire screening or other screening, mesh or guards to safeguard and protect paying spectators from objects hurled or propelled from the ice.
“It failed and neglected to warn or apprise plaintiff by sign or otherwise of the hazards and dangers to which it was then and there subjecting him.
“It caused, allowed and permitted a hard rubber object or hockey puck to be propelled and hurled against him while he was seated unprotected in its said Arena.”

The answer admitted that the accident happened and that plaintiff was injured. It denied that defendant was negligent, and alleged that the plaintiff, by sitting in an unprotected seat when seats at the ends behind the screen were available to him, assumed the risk of injury such as he sustained.

Contributory negligence as a defense was not pleaded. There was evidence that could be construed as raising it, and in the submission of the case to the jury counsel and court then, and counsel now, seem to so treat it and no complaint is made in that respect. As will be later pointed out, defendant only urges that that defense was not properly submitted.

The errors assigned and now urged are the overruling of defendant’s motions for judgment at the close of the evidence, and notwithstanding the verdict; in refusing to charge the jury as requested before argument; and in the general charge.

1. On the issue of negligence charged to it, its charges of contributory negligence and of the assumption of the risk, the defendant contends that the principles applied in the decisions in cases involving injury to spectators in baseball games are applicable here, and under them it was entitled to a judgment as a matter of law. By those principles, as almost universally applied, the owner or management of a professional baseball game is not negligent in failing to screen the spectators’ stands, except back of the batter’s plate, and that a spectator who occupies a seat in an unscreened section when he could have had one in the screened section and is injured by a foul ball or wild throw is guilty of contributory negligence and assumes the risk of such hazards.

Ohio is generally credited as following this line from the dictum expressed in the opinion in Cincinnati Baseball Club v. Eno, 112 Oh St 175, 147 N. E. 86. That is not in the syllabus of that decision but is stated in the opinion, obviously to show its nonapplication to the facts in that case where the plaintiff’s injury came from a ball, not thrown or struck in the course of a regular game on the diamond, but by players warming up on the sidelines and but a few feet from the plaintiff in her seat in the stand. Because of that peculiar state of facts, negligence and contributory negligence were jury questions and recovery was sustained.

The first paragraph of the syllabus in that decision states the overall rule as to the duty of management in that game, and in hockey too. It is as follows:

“One who expressly or by implication invites others to come upon his premises must exercise ordinary care to guard them against danger, and to that end he must exercise ordinary care to render the premises reasonably safe for the invitee.” The rule of non-liability in the baseball cases as expressed in the Eno case opinion is based on the defense of the assumption of risk and prevails in most jurisdictions, including Ohio, as expressed in the decisions of the reported decisions of our lower courts. These cases are collected in notes in 142 A. L. R. 868 and in 1 Neg. and Comp. Cases, n. s., 488 and 13 Same, 232.

In a minority of jurisdictions the baseball rule has been applied to similar injuries sustained by spectators in hockey games, and recovery therefor has been denied.

The leading Supreme Court decision in this group is Modic v. City of Evelith, 224 Minn. 556, 29 N. W. 2nd, 453, 15 Neg. Cases, 337. One of the reasons emphasized in that decision is that hockey is so extensively played in that state and has been for so long that its hazards are generally known and understood. Mention is made of the fact that the plaintiff was 37 years of age when injured and had attended hockey games all his life, knew all about how it was played and had a brother who was a player. The same reasoning was expressed in Elliott and Elliott v. Amphitheater, Ltd. 3 Western Weekly Reports, (King’s Bench, Canada, Manitoba), 225. That plaintiff was himself a hockey player.

Another Canadian decision in this group was Gervais v. Canadian Arena Co., 74 Que. S. C. 389. This report is in the French language and was not read by the writer, but plaintiff’s brief quotes from it in English and indicates that the court laid emphasis upon the fact that hockey was a common sport there and that that plaintiff was familiar with it.

In New York, its court of last resort has not spoken on this subject, but its lower courts have consistently denied recovery for injuries to hockey game spectators. The reasoning in baseball cases has been followed. This happened in the early decision in Rich v. Madison Square Garden Corp., 149 Misc. 123, 266 N. Y. S. 288. In that game, players collided with each other and against the board wall and the club of one was hurled into the stand and struck the plaintiff. Evidence showed it was such an unusual happening that the management was not bound to anticipate it, hence it was not negligent.

Later cases in this jurisdiction, following this lead, having been:

Hammel v. Madison Square Garden Corp., 156 Misc. 311, 279 N. Y. S. 815; Ingersoll v. Onondaga Hockey Club, Inc., 245 App. Div. 137, 281 N. Y. S. 505.

The evidence herein is that the arenas where these injuries took place have since, in New York State, been provided with screening on the sides for the protection of spectators.

By the great weight of authority as expressed in the following jurisdictions, the differences between the hazards in hockey and baseball games and in the resulting duties of the management and spectators have been recognized. In most of these decisions the reasoning of the courts in the foregoing cited cases has been considered and rejected. In Shanney v. Boston Madison Square Garden Corp., 296 Mass. 168, 5 N. E. 2nd, 1, the plaintiff was attending her first hockey game and was not aware of the danger of flying pucks. The court expressly disagreed with the New York decisions cited above. This decision was cited and followed in Lemonine v. Springfield Hockey Assoc., 307 Mass. 102, 29 N. E. 2nd, 716. That plaintiff had attended hockey games and knew about flying pucks, but he was struck while on a promenade even though it was protected by a screen. The court said:

“His knowledge as to the likelihood of a puck being driven to the promenade did not rest upon as extensive a basis as that oí the defendant. The defendant possessed knowledge accruing from the total of all the games.”

In Thurman v. The Ice Palace, 36 Cal. App., 364, 97 Pac. 2nd, 999, the trial court had applied the baseball rule to a hockey game and denied recovery as a matter of law. This was reversed and cause remanded. On retrial, the issues of negligence, contributory negligence and assumption of the risk were submitted to the jury, which found for the defendant and the judgment was affirmed. Thurman v. Clune, et al, 51 Cal. App. 2nd, 505, 125 Pac. 2nd, 59.

This decision was followed in Shurman v. Fresno Ice Rink, Inc. 91 Cal. 2nd, 469, 205 Pac. 2nd, 77. Notwithstanding many posted signs by the management warning of the danger of flying pucks, the court said a jury question was presented.

Fite v. Omaha Coliseum Corp., 144 Neb. 22, 12 N. W. 2nd, 90, speaks for that state.

In James v. Rhode Island Auditorium, Inc., 60 R. I. 405, 199 A. 293, the differences in the games of hockey and baseball were discussed and the decisions in New York and Canada, cited above, were reviewed.

Ivory v. Cincinnati Baseball Club, 62 Oh Ap, 514, 24 N. E. 2nd, 837, was a baseball case in which the plaintiff had full knowledge of the game and its hazards. The court discussed and pointed out the importance of knowledge of the plaintiff, citing Shanney v. Boston Madison Square Garden Corp., supra, and James v. Rhode Island Auditorium Inc., supra. It placed denial of recovery by plaintiff as a matter of law on the reason of the court in the opinion in Cincinnati Baseball Club v. Eno, 112 Oh St 175, and certification was denied by the Supreme Court.

On the issue of negligence of the defendant, it appears that six of the ten clubs in the American League, of which the defendant is a member, provide screens on the sides to protect spectators from flying pucks like the one that injured the plaintiff. Also, that one half or more of the larger arenas in the United States have such protection. It is in evidence that it is entirely possible to provide screening on the sides to protect spectators seated as was the plaintiff and still leave the extra players and penalty sections in front of the screen and open.

Following the reasoning in the decisions above reviewed and having regard for the evidence tending to show the lack of knowledge of the plaintiff as to the hazards of the game and the knowledge the defendant had of them, the court was right in submitting to the jury the issues of negligence of the defendant, the contributory negligence of the plaintiff, and whether he assumed the risk of injury.

2. Error is assigned to the refusal of the court to give two special requests to charge before argument, No. 1 was as follows:

“While the proprietors of sports arenas are required under the law to exercise ordinary care for the safety of patrons, they are not the insurers of the safety of patrons. When the sport is one which in the normal course involves some hazards to the spectators, 'the patrons attending such sports events assume the risk of such hazards as are normally inherent in the sport.”

The first sentence of this instruction is correct. The second sentence is the rule as to the hazards of baseball games. In the decisions cited above, the difference between that game and ice hockey is pointed out. Also, this statement does not take into account the element of knowledge or lack of knowledge of the plaintiff regarding the hazard assumed. That element was stated by Judge Hart in Masters v. New York Central Rd. Co., 147 Oh St 293, on page 300, where he said:

“Where the proximate cause of an injury is referable to the conduct of the injured party, after knowledge of the risk of injury and not that of a defendant who in the first instance created the risk, such risk of injury is assumed by the injured party.” (Emphasis ours.)

Request No. 3 was as follows:

“The court further charges you as a matter of law that as far as screening the spectators’ stand is concerned, due care on the part of the Arena management does not require that all of the spectators be screened in; the management performs its duty toward the spectators when it provides screened seats in the stands and gives spectators the opportunity of occupying them.”

This language was adapted from the opinion of Judge Allen, at page 181, in the case of Cincinnati Baseball Club Co. v. Eno, 112 Oh St 175. That language has reference to the hazard of batted or thrown balls in the game when played on the diamond. As hereinbefore stated, the peculiar facts in that case took it out of that rule, just as the peculiar facts and hazards of a hockey game take this case out of the baseball rule as reasoned in the cases above cited.

The true rule by which the duty of the defendant in any game, be it hockey or baseball, is to be measured, is as stated in paragraph one in the syllabus in Cincinnati Baseball Club v. Eno as quoted above. The fact that the managements of so many arenas where hockey is played have erected sideline screens for the protection of their patrons is strong evidence that ordinary care may have required of the defendant to have done so. At least a jury question was presented.

The refusal of both of these requests was not error.

3. Complaint is made as to the general charge to the jury on the subjects of contributory negligence and assumption of the risk, and a part of the charge is quoted in defendant’s brief. When the whole charge is read and considered, it is a fair statement of the law, and the jury could not have been confused or misled by it, and no prejudice resulted to the defendant. At the close of the charge, the court invited suggestions from counsel and defendant’s counsel said he had no further instructions to request.

Finding no error prejudicial to the defendant, the judgment will be affirmed without penalty.

Judgment affirmed. Exc. Order see journal.

CONN, PJ, and FESS, J, concur.


source: Caselaw Access Project

author: By HORNBECK, J:

license: Public Domain

text:
    WOLF, d. b. a. E. CARL WOLF REAL ESTATE COMPANY, Plaintiff-Appellant, v. GLENN, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2078.
    Decided December 8, 1949.
    Irvin Carl Delscamp, Dayton, for plaintiff-appellant. Froug & Froug, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, J:

The appeal is on questions of law from a judgment of the Common Pleas Court entered upon separate findings of fact and law by the trial judge before whom the cause was tried, jury having been waived.

The action was to recover $1,000.00 on an alleged contract, whereby the plaintiff, a real estate broker, was to sell the real property of the defendant. The judgment was predicated upon the finding of fact that the plaintiff had not proven by the requisite degree of proof, namely, a preponderance of the evidence, that there was a contract between the parties as pleaded in the petition.

The petition averred the contract, performance by the plaintiff and breach by the defendant and the answer was a general denial. The defendant went to trial on the general denial, waiving proof only of the averment that the plaintiff was a duly licensed real estate broker. The plaintiff, attempting to prove that the purchaser, which he claimed to have secured, was able, ready and willing to buy the property at the price quoted, made such inquiry of Dr. James D. Varney, the proposed purchaser. Objection to this question was sustained on the ground that it was a conclusion. Then followed this question,

“Did you have $22,000.00 to your credit on that day in the bank?”

This question was answered, “Yes sir.” Objection was made and sustained, although it was not formally stricken. These rulings by the trial judge are made the basis of the first assignment of error. Objection to the first question was properly sustained. The second question and answer were proper. The fact that the plaintiff had $22,000.00 to his credit in the bank was some proof of his ability to pay the price which he had offered for it, namely, $22,055. However, inasmuch as the trial judge rested his findings upon the proposition that no contract was consummated between the parties, the failure to receive this testimony could not have been prejudicial to the plaintiff.

The second part of the first assignment of error is directed to the refusal of the trial judge to permit Dr. Varney to testify concerning a ‘phone call that plaintiff made to him informing him that the defendant had rejected his first offer of $20,000.00 for the property which he desired to purchase. It is urged that this testimony was admissible “as it would have further corroborated the fact that the defendant had engaged the plaintiff to sell her house and that negotiations were under way to carry out the contract” and because the plaintiff was acting as defendant’s agent when the statement was made to Dr. Varney. We do not believe that this testimony would have been corroborative of any of the terms of the contract between the parties which is pleaded. As we read the record, the contract sued upon occurred subsequent to the conversation to the effect that the defendant had refused to sell her property for $20,000.00. Inasmuch as the trial judge found that there was no contract between the parties the testimony could not have been received upon the theory that in making the statement to Dr. Varney he was acting as agent for the defendant. The refusal to accept the testimony could not have been prejudicial to the plaintiff because there is no dispute as to the fact that the defendant did refuse to accept $20,000.00 for her property.

The second assignment of error is that the finding and judgment of the trial court is contrary to law.

In the finding of facts it is stated that:

“Plaintiff claims that the defendant told him at the time the $20,000.00 offer was rejected that if he were to get her an offer of $21,500.00 that afternoon she would sell the property. The defendant denies this.
“The evidence shows that the plaintiff again took Dr. Varney and his wife to the defendant’s home, showed them the property some more and secured a written offer from Dr. Varney to pay the sum of $22,055.00 for the property. This sale price included $500.00 for the refrigerator and stove, and $55.00 for some paint and shingles. The defendant immediately rejected this offer and would have nothing to do with it.
“There was no testimony whatever to support the claim of the plaintiff. The defendant does have two witnesses whose testimony tends to support defendant’s testimony in part.”

Later, in the conclusions of law, it is said,

“In view of the sharp conflict in the testimony between the parties and the absence of any testimony corroborating rhat of the plaintiff, it is the conclusion of the court that the plaintiff has failed to sustain the burden of proof and judgment must therefore be rendered in favor of the defendant.”

It is the contention of the plaintiff that the conclusion that there is no corroboration of plaintiff’s claim respecting the contract, is not justified upon the record.

The fact that the trial judge not only finds that there is no testimony corroborating plaintiff’s claim but that the claim of defendant is supported by two of the witnesses “in part” requires consideration to determine what the court had in mind by “in part.” The two witnesses to which reference is made said that on the afternoon of the 27th of October the plaintiff importuned the defendant to sell her property and that she refused and stated that she did not want to sell. This was the only material matter about which they testified and it was a circumstance corroborating the testimony of defendant that she at no time proposed or consented to sell for $21,500. On the other hand, Dr. Varney, the prospective purchaser, stated that at the same place and on the same afternoon “she (the defendant) showed us the cottage in the back and she offered to take $21,500.” This is corroborative of two elements of the claim of plaintiff, namely, that defendant wanted to sell and that her price was $21,500, the amount at which he asserted she authorized him to make the sale. There are other circumstances tending to support the theory of the plaintiff that the defendant was desirous of selling or trading her property.

There is no doubt of the right of the trier of the facts to resolve the statements of the witnesses and to give them such weight as in his discretion they merit. If this was the only question presented by the findings we would readily support them but it must be assumed that the trial judge reached his conclusion of the right of the plaintiff to recover upon the conviction that the plaintiff was not corroborated and that the defendant was. This case is very close on the facts and because it appears that the court must have reached its finding and judgment on a misconception of the testimony we are required to say that the cause of the plaintiff was prejudiced by the finding.

It is argued by the appellee that the record discloses that the plaintiff in the transaction involved acted in the dual capacity of agent of the defendant and of Dr. Varney, the prospective purchaser. Had the negotiations between the parties resulted in a trade of the respective properties this contention would have much weight although it was not pleaded. However, there is no showing that in the attempted sale of the defendant’s real estate the plaintiff sustained any agency relationship toward Dr. Varney.

The third assignment of error is directed to the weight of the evidence. Upon this assignment, unaffected by the second assignment which we have discussed, we do not hold that the finding and judgment are against the manifest weight of the evidence.

Upon the one claim of error which we find established the judgment will be reversed and the cause remanded.

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 2078. Decided January 4, 1950.

By THE COURT:

The defendant-appellee has filed an application for rehearing. At present we have no rule permitting applications for rehearing and it is only in rare instances, where there is something which, manifestly, the court has overlooked in the original opinion that such applications are entertained.

Nothing is presented on this application which the court did not consider in its former ruling.

The application will not be entertained.

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


author: By LEACH, J.

text:
    WARE v. SHARTLE.
    Common Pleas Court, Franklin County.
    No. 172311.
    Decided December 28, 1948.

      McGhee, Rowe & Evans, J. F. Chanflona, Columbus, for plaintiff.
    Bruce G. Lynn and Thomas A. Boulger, Columbus, for defendant.
   OPINION

By LEACH, J.

This is an action to set aside a deed from Prescott B. Ware to D. Lester Shartle, dated December 5, 1945.

In the absence of any allegation or proof of fraud or that Bertha E. Ware did not during her lifetime provide a home and the necessities of life to Prescott B. Ware, the claim of failure of consideration for the deed from Prescott B. Ware, to his daughter by reason of the death of Bertha E. Ware, there being no forfeiture clause in said deed, cannot prevail. This is conclusively established by the case of City of Cleveland v. Herron, 102 Oh St 218, on page 224, 131 N. E. 489, 491, the applicable rule being stated: “It seems quite well settled that mere failure of consideration, whether partial or total, when unmingled with fraud or bad faith, is not sufficient in equity to warrant the rescission of an executed contract; and, further, that in the absence of fraud a deed for real estate will not be set aside as for a failure of consideration on the sole ground that the promises and agreements which entered into its execution, and which were to be performed in the future, have not been performed. So equity will not interfere ordinarily where a grantor has seen fit to accept a promise on the part of his grantee for the performance of certain acts, without specifically providing that failure to perform shall be a condition of forfeiture, or in some way affect the validity of the deed, or entitle him to a reconveyance.” This is the rule adopted by the Ohio Supreme Court.

Outside of Ohio there seems to be a conflict of authority: Lucas v. Lucas, 171 Ga. 806, 156 S. E. 680; Cree v. Sherfy, 138 Ind. 354, 37 N. E. 787; Maddox v. Maddox, 135 Ky. 403, 122 S. W. 201; and Beard v. Beard, 200 Ky. 4, 254 S. W. 430, cited in plaintiff’s brief, are apparently contra. In accord, however, are the cases of Flanagan v. Flanagan, 133 Md. 332, 105 A. 299; Calkins v. Calkins, 220 Ill. 111,. 77 N. E. 102; Knight v. Jones, 93 S. C. 376, 76 S. E. 978, and House v. House, 191 Ga. 678, 13 S. E. 2d 817.

It is to be noted that, apparently to insure against' failure of consideration of said deed in case of her death, the grantee therein, Bertha B. Ware, by will devised to her father Prescott B. Ware “all real estate owned by me at the time of my decease, he to have and to hold all such real estate absolutely and in fee simple forever.”

Plaintiff further contends that the deed from Prescott B. Ware to D. Lester Shartle recites that it was for a valuable consideration, and cites Burrage’s Lessee v. Beardsley, 16 Ohio 438, as follows:

“Where a deed purports to be executed for a valuable consideration, and is impeached by proving that no such consideration passed, it cannot be sustained by proving that it was executed in consideration of natural love and affection.”

However, reference to the deed sought to be set aside shows that the consideration stated in said deed was “one dollar and other good and valuable consideration.” So, it is apparent that the expressed consideration was not “valuable consideration” alone, but also “good” consideration.

Moreover, as stated at page 665 of the opinion in Brown v. Whaley, 58 Oh St 654, 49 N. E. 479, 480, “The great weight of authority is that, as between the parties, a gift or voluntary conveyance is valid, and can only be questioned by creditors; and by the recognition given by the general assembly to deeds of gift, and the decision in Thompson v. Thompson, 17 Oh St 649, the question as to their validity seems to be fully settled in this state.”

As to the claim that Prescott B. Ware was, at the time he executed the deed in question, mentally incompetent, there is a conflflict in the evidence. What constitutes sufficient mental capacity to make a deed is well stated in Monroe v. Shrivers, 29 Oh Ap 109, at page 112, 162 N. E. 780, 781, of the opinion:

“It may be further stated that the same rules as to mental capacity that apply to wills apply also to deeds and other written instruments, and, where the grantor has sufficient intellect to understand in a general way the nature and effect and immediate consequences of a transaction, and consents to it, such is valid and binding and cannot be set aside for lack of mentality. * * *
“As a rule as to mental capacity to make a lease, deed, or other written instrument, it may be stated in a general way that senility, eccentricity, or even partial impairment of the mental faculties, is not necessarily sufficient to incapacitate the grantor if he has sufficient mental capacity to comprehend the nature of the transaction and to protect his own interest.”

The execution of said deed, it is manifest from the evidence, was not upon sudden impulse but the result of an intention long held to by the grantor. Over a period of years he had felt that the grantee was more like a son to him than his own son, the plaintiff; between whom and the grantor friendly relations had not for a long time existed.

It was shown that the grantor was somewhat eccentric, and several isolated manifestations of a hot temper, over the years of his past life, were disclosed by the evidence.

Also a psychiatrist who sat in on a hearing of an application for the appointment of a guardian for the grantor on April 8, 1947, which was a year and four months after the date of the deed in question, and whose only opportunity for observation was listening to the testimony of the grantor for one or two hours together with a short conversation with him in the court chambers, he never otherwise having had any contact or acquaintance with the grantor, expressed the opinion that Prescott B. Ware was mentally ill, and that he he had been for a good many years.

As against this, his family physician who had since 1934 seen him every three to five weeks, stated the grantor’s memory was good, his conversation continuous, and that in his opinion the grantor was of sound mind and capable of performing ordinary business transactions and of disposing of his property by deed.

His neighbors, Robert Tallant, Edith Tallant, Walter Pfeiffer, Stewart McNaughton, Arthur Chaney, and Mrs. Arthur Chaney, all of whom knew and frequently saw the grantor, were all clearly of the opinion that Prescott B. Ware was of sound mind in 1945 and mentally capable of transacting ordinary business and to form a purpose to dispose of his property by deed. Samuel L. Black, an attorney at law and a neighbor since 1925, and who saw and talked with Ware frequently since 1925, stated that he had a remarkable memory; that “he would certainly say his mind was sound,” and that “he was perfectly capable of transacting ordinary business and to form purpose of disposing of his property by deed.”

James H. Nissley, Office Manager of the Western Union Telegraph, who knew Prescott B. Ware over a considerable number of years and handled some of his business for him, was of the same opinion. So also was W. O. Randall, an attorney, and witness to the deed, who before its execution reviewed with the grantor, in detail, the grantor’s purpose, and the effect of said deed and all of its ramifications. The Court cannot say that the evidence of mental incompetency is clear and convincing or even preponderates over the evidence that the grantor was mentally competent at the time of making the deed. There is no evidence of undue influence. While by the making of this deed the plaintiff, son of the grantor, was disinherited, “The mere disinheriting of one of testator’s children is not an act, which, standing alone, may be considered by the jury as indicating any unsoundness of mind or inability on the part of the testator to make a will.” Syl. 1, Frye v. Frye, 17 Oh Ap 246. The Court quotes with approval from editorial notes found in 13 Ann. Cases, 1044, as follows: “Though it has been held that the disinheritance of the testator’s children is prima facie an unnatural and unreasonable act * * * it seems from the decisions cited under the general rule that in the absence of facts indicating a want of motive for a particular disposition, it cannot be said that such disposition is unnatural or unjust. For the purpose of determining whether the disposition is in fact unnatural or unjust, the relation which existed between the testator on the one hand and the persons disinherited and the legatees on the other should be considered.”

The grantor’s motive clearly appears from the record and it is further apparent that the grantor in making the deed had clearly in mind the relations which existed between himself, the grantor, on the one hand, and the person, his son, so disinherited, and his grantee on the other, and in view thereof, made the deed in question.

Finding the judgment, on the issues joined, for defendant; petition dismissed, at plaintiff’s costs. Exceptions.

Motion for new trial, if desired, may be filed and overruled with exceptions.


author: By THE COURT.

text:
    CLEVELAND BUILDING LABORERS’ UNION, Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4446.
    Decided August 31, 1950.
    Harold T. Gassoway, Cleveland, Ray E. Hughes, Columbus, for plaintiff-appellant.
    Hon. Herbert S. Duffy, Atty. Geni., Charles T. Kaps, Asst. Atty. Geni., Columbus, for defendants-appellees.
   OPINION

By THE COURT.

Submitted upon motion of the appellees seeking an order dismissing the appeal on questions of law upon the following grounds:

1. Appellant has failed to file a bill of exceptions within the time allowed by statute.

2. Appellant has failed to properly prosecute this appeal, in that (a) appellant has failed to file a brief within the time allowed by the rules of this court; (b) appellant has failed to file an assignment of errors within rule.

Counsel for the appellant admits the charges set forth in the motion, but is resisting same for two reasons: (1) No bill of exceptions is necessary to exemplify the errors complained of; (2) The assignment of errors and brief were not filed in accordance with Rule VII due to the illness of one of counsel and illness in the family of the other counsel. This Court has recently held that the filing of a bill of exceptions is not essential to the perfecting of an appeal where the error complained of is disclosed by the pleadings or transcript of docket and journal entries. Hoffman Candy Co. v. Department of Liquor Control, 56 Abs 257. Therefore the first branch of the motion is not well taken.

The second branch of the motion should be sustained since no good cause is shown for noncompliance with the rule. Doe v. Roe, 54 Oh Ap 145; Parrott v. Parrott, 42 Abs 413.

The appellant has also filed a motion seeking leave to file assignment of errors and brief out of rule, supporting it only by the following statement in the brief:

“Due to the illness of Harold T. Gassoway of Cleveland, Ohio, leading counsel in this case, he has been unable to perform little, if any, of his tasks as a lawyer, and therefore has been unable to prepare and file assignment of errors and brief in this case.
“Because of ill health in the family of R. E. Hughes, associate counsel for plaintiff-appellant, and other factors over which he had no control, he has been unable to properly assist leading counsel with reference to this appeal.”

We are of the opinion the statements of counsel are quite indefinite and are insufficient to meet the requirements of the rule. It will be noted that one of counsel was able to perform only “little, if any, of his tasks as a lawyer, * *

As the court pointed out in the Parrett case, supra, when the appellant finds the time for filing assignments of error and brief is about to elapse an application should be made for an extension of time, which is usually granted. It appears from the statement of counsel that either of them might have made such a request.

The motion for leave to file out of rule will be overruled and the judgment affirmed.

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


author: By FESS, J: CONN, PJ,

text:
    McFADDEN, Admx., Plaintiff-Appellee, v. BREUER TRANSPORTATION CO., Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21984.
    Decided January 3, 1951.
    M. L. Bernsteen, Jos. L. Sweeny, Cleveland, for plaintififappellee. •
    Squire, Sanders- & Dempsey, Cleveland, for defendants-appellants.
    (CONN, PJ, CARPENTER, J, FESS, J, of the Sixth Appellate District, sitting by designation in the Eighth District.)
   OPINION

By FESS, J:

Appeal on questions of law from a judgment entered by the court without the intervention of a jury for the plaintiff in the sum of $10,000.00.

The only question to be determined upon the appeal is whether plaintiff’s decedent, while driving his automobile, was guilty of contributory negligence as a matter of law in colliding with a roll of steel upon the highway.

The action was brought for wrongful death. Jury was waived and the case tried to the court. Defendants admitted negligence proximately contributing to the death and it was agreed that the sole question to be determined by the court was whether the decedent was guilty of contributory negligence as a matter of law. It was further stipulated that in the event of a finding adverse to the defendant, judgment should be entered for plaintiff in the sum of $10,000.00. Upon the trial the court found that the question of defendant’s contributory negligence was one of fact for the jury, and judgment was entered for the plaintiff in the agreed amount.

Upon a dark night, with no lights (except presumably his headlights) surrounding the scene, plaintiff’s decedent drove his car into a roll of steel lying within his lane of travel with such force that he and two companions were killed .and his car demolished. The roll was a coil of strip steel weighing 13,410 pounds. The width across its face was 34 inches and its diameter 3 feet 11 inches. After the accident, the roll was lying upon its base with the hole on the inside vertical, like a “doughnut” so that as it rested on the highway it presented an object 34 inches high and almost four feet wide. The coil was resting two and one-half feet east of the center line in the northbound traffic lane, — the direction in which the decedent was driving. The demolished automobile was lying 69 feet north of the coil in the ditch on the ••east or right-hand side of the road proceeding north. There were no skid-marks on the pavement but there were marks made by the automobile on the berm where it went through the dirt toward the point where it stopped. A truck driver proceeding 40 miles per hour testified that a few minutes before arriving at the scene of the accident decedent’s car had passed his truck, that he observed the roll of steel when about 150 feet from it, but on account of the roughness of the highway was unable to stop his truck in time to avoid striking the steel with the bumper of his truck.

The highway in the vicinity of the collision was 20 feet wide and was straight, but 300 feet south of the roll of steel was a knoll and the road was slightly downgrade from the knoll to the point of collision. Decedent, therefore, travelled slightly downgrade on an unobstructed straight but rough road for a distance of 300 feet.

The color of the steel in contrast with that of the highway Is in dispute. Defendants’ testimony tends to show that the <color of the steel was gray in contrast with the black highway. Plaintiff’s testimony tended to show that the color of the steel was identical with that of the road. Plaintiff, the decedent’s mother, who went to the scene of the accident that night, was satisfied that if the roll had been in front of her son’s automobile he would have seen it if his lights were good. She also said that while riding with her son a few nights before the accident his headlights were sufficiently brilliant to disclose a cat in his path.

A photograph of the steel roll disclosed that it shined or glistened in the reflection of the flash bulb, but it appears that the picture was taken a few feet away from the roll so that the only credible evidence of reflection from headlights is the testimony of the truck driver that he saw the roll when he was about 150 feet from it. A sixteen year old boy testified that he was in his house 300 feet from the point of collision, heard the crash and in looking through the window saw a car roll into the ditch and also saw a gray outline, something in the middle of the road, “looked lighter than the road,— could just barely see it.” Since the boy also said there were no lights of any character surrounding the scene at the time he looked the trier of the facts could well disbelieve this testimony. There is no testimony relating to the time during which the steel remained a static object on the highway and one of the contentions of the plaintiff is that the roll of steel could have rolled off of defendant’s truck into the path of decedent’s automobile.

Sec. 6307-21 GC, provides in part:

“No person shall drive any motor vehicle ‡ * * upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead.”'

Sec. 14 of the Act of May 11, 1908, incorporated the “reasonable and proper” — “having regard” principles, and Sec. 15 of the Act prescribed speed limits. Violation of the sections was deemed prima facie evidence of a misdemeanor. Sec. 14 became Sec. 12603 of the General Code of 1910. The reasonable and proper rule was re-enacted in various forms in 1913 (103 O. L. 161), and 1919 (108 O. L. Pt. 1, 471) and in 1923 (110 O. L. 138). In the 1923 Act “reasonable and proper having regard” etc., was provided in §12603 GC and without due regard for the safety of pedestrians and drivers was provided in §12603-1 GC. In the act of Apr. 19, 1929 (113 O. L. 283), the assured clear distance ahead provision was first enacted as an amendment to §12603 GC. It has been retained without any change in subsequent amendments to the traffic code.

Before the 1929 amendment, in Tresise v. Ashdown, 118 Oh St 307, decided in 1928, the Supreme Court held that an instruction that the operation of a motor vehicle at such a rate of speed that the driver can not stop within the distance that an obstruction in the highway could be seen by his own headlights constitutes negligence per se was erroneous. In Skinner v. Pennsylvania R. R. Co. 127 Oh St 69, 186 N. E. 722. decided in 1933, the court said that the assured distance provision is a specific requirement of law, a violation of which constitutes negligence per se. The Skinner case was followed by Gumley v. Cowman, 129 Oh St 36 (1934), 194 N. E. 627; Watt v. Jefferson Trucking Co. 130 Oh St 99, 196 N. E. 887; Universal Concrete Pipe Co. v. Bassett, 130 Oh St 567, 200 N. E. 843, 119 A. L. R. 646; Hunter v. Brumby, 131 Oh St 443, 3 N. E. 2d, 353; Kormos v. Cleveland Retail Credit Men’s Assoc. 131 Oh St 471, 3 N. E. (2d) 427; Higbee Co. v. Lindemann, 131 Oh St 679, 3 N. E. (2d) 426; Matz Admr v. Curtis Cartage Co. 132 Oh St 271, 7 N. E. (2d) 220; Hangan, a minor v. Hadfield, 135 Oh St 281, 20 N. E. (2d) 715; Capelle v. B & O R. R. 136 Oh St 203, 24 N. E. (2d) 822; Smiley v. Arrow Spring Bed Co. 138 Oh St 81, 33 N. E. (2d) 3, 133 A. L. R. 960.

These decisions recognize that under some circumstances a failure to comply with the rule may be excusable. However, they make clear that the burden is upon the operator of the vehicle who attempts to escape the legal effect of this mandatory provision, to prove such a state of facts over which he had no control that compliance therewith was made impossible. Cf., Glasco v. Mendelman, 143 Oh St 649, 653. The plaintiff’s contention that the roll of steel must have fallen suddenly in front of decedent’s car must, therefore, be disregarded in the absence of some proof to support that contention.

But was the roll of steel 3 feet high and 4 feet wide such a substantially discernible object as to require a finding as a matter of law that the decedent failed to stop within his assured clear distance ahead?

The cases applying the rule as a matter of law involve collisions between a motor vehicle and a railroad train, — (Skinner v. Penna. R. R. supra), Read v. Erie R. R. Co. 134 Oh St 31, 15 N. E. (2d) 637, Cappelle v. Baltimore & Ohio R. R. supra); a motor truck, — (Gumley v. Cowman, supra, Watt v. Jefferson Trucking Co. supra, Universal Concrete Pipe Co. v. Bassett, supra, Higbee Co. v. Lindemann, supra, Matz v. Curtis Storage & Cartage Co. supra); whether compliance excused a jury question — (Smiley v. Arrow Spring Bed Co. supra.); a dirty automobile, — Kormos v. Credit Men’s Assoc, supra); an automobile on wrong side of road, around a curve, and a jury question presented — (Hangen v. Hadfield, supra).

In Smiley v. Spring Bed Co. the court re-affirmed and restated the rule in unequivocal terms, as follows:

“To comply with the assured-clear-distance ahead provision of §12603 GO, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable in the exercise of ordinary care, to avoid colliding therewith.”

Since the Smiley case was decided (1941) it has been recently cited with approval in Garbe v. Halloran, 150 Oh St 476, 479 (1948) and Klever v. Reid Bros. Express Inc. 151 Oh St 467, (1949); Bickel v. American Can Co. 154 Oh St 380.

The rule has likewise been applied in automobile-pedestrian collision cases; Glaseo v. Mendelman, 143 Oh St 649; Betras v. McKelvey Co. 148 Oh St 523; but these cases deal primarily with the question of proximate cause and also whether the sudden entrance of a pedestrian into the defendant’s path excuses compliance with the rule. It could be inferred from these cases that whether a pedestrian is a discernible object is a question for the jury.

In the Spring Bed case, the court was dealing with the situation confronting a driver proceeding over the crest of a hill in the face of lights from cars approaching from the opposite direction. But in the course of the opinion, Judge Hart discusses “discernible object” and cites authorities in other jurisdictions. He quotes, for example, from Lindquist v. Thierman, 216 Iowa, 170, 248 N. W. 504, as follows:

“To illustrate, a driver of an automobile at night, as well as in the day, in order to stop his car within the assured clear distance ahead, must be able to timely discern a man a horse, a cow, or another vehicle; whereas, such driver of the automobile might or might not discern a thin wire or a small stake in time to stop within the assured clear distance ahead.”1 (Emphasis ours.)

As examples of the circumstances under which the rule was applied, Judge Hart refers to the following, in addition to a train of cars, a truck or automobile:

Where a motorist ran head-on into a street curb and a pole beyond it at a jog in the street on a dark, misty night (Greenland v. Des Moines, 206 Iowa. 1298, 221 N. W. 953); where a motorist ran into a concrete mixer (Elrich v. Schwaderer, 251 Mich. 33); where a motorist drove through a barrier into an opening in a road (Lauson v. Pond du Lac, Wis. 141 Wis. 57. 123 N. W. 629).

As examples where the rule was not applied, Judge Hart refers to:

Where a motorist collided with an obstacle caused by slipping on an undiscernible patch of ice in front of the obstacle (Diedericks v. Duke, 234 Mich. 136, 207 N. W. 874) and where a motorist drove into an unlighted ditch extending across the highway and not easily discernible (Owens v. Iowa County, 186 Iowa. 408, 169 N. W. 388).

In Termuhlen v. Campbell, (1943) 48 N. E. (2d) 891, the Court of Appeals of Hamilton County, held upon authority of the Spring Bed case that an oil drum resting on the berm and a few inches over the paved portion of the highway was a discernible static object and entered final judgment for the defendant. In Mossman v. Cincinnati, 34 N. E. (2d) 246, decided in 1936, the same court held a safety zone structure to be a substantial object. The platform was protected by a bumper three feet high and four feet wide, with a red glass reflector. It was otherwise unlighted.

In the Termuhlen case, the court says:

"It cannot be supposed the decedent deliberately drove into the drum. If he did, of course, his administrator, the plaintiff, can not recover. Then he either saw it or did not see it. If he saw it, he evidently saw it too late to stop the automobile, and he comes within the purview of the statutes rendering him guilty of negligence per se. If he did not see it, either he was not observing where he was driving or the lights which he was employing were not of sufficient intensity to illuminate the object far enough ahead to permit him to stop the machine when its presence became apparent. In either case, his negligence is obvious and conclusive against bim He may have been and probably was led astray by the extra width of passable road caused by the Casino drive and the normal width of the highway. This accompanied by the fact that such situation gradually narrowed as the south side of the drive terminated almost at the culvert. But this condition was wholly static. It could have been seen. It was observed by witnesses more than one hundred feet away. There was some evidence the night was misty. This only increases the burden of caution resting upon the driver of the vehicle.” See also: Schraff v. Foley Const. Co. 87 Oh Ap 277.

In the recent case of Brown v. Wackman (1949) 87 Oh Ap 61, the court holds:

“A motor truck had been parked, without warning signals and lights, on the right side of a north-south highway, in such a way that part of the truck projected about ten inches over the paved portion. About 400 feet south of the parked truck there was a turn in the highway. During the night season, a motorist was operating his vehicle south on such highway at a speed of about 40 miles an hour. As he approached the parked truck, a motor vehicle travelling north on the highway negotiated the turn and as it straightened its lights blinded the driver of the south-bound vehicle, who immediately applied his brakes and materially lessened his speed. But before he came to a stop his vehicle collided with the projecting portion of the parked truck. Such driver did not see the truck until he was almost upon it. Held: In an action by the driver of the southbound vehicle, predicated on such collision, the question whether plaintiff was legally excused for failure to observe the assured-clear-distance ahead provision of §6307-21 GC, was one of fact.”

In this case the court held that under the circumstances the driver was confronted with an emergency and compliance with the rule was a question of fact. The court says, however, in the opinion, that there was a question whether, under the circumstances confronting the driver, that part of the truck which projected into the highway was a discernible object. It is also said:

“Manifestly there are many degrees of visibility between freight cars standing across the full width of a road, as in Skinner v. Penna R. R. Co. 127 Oh St 69, 186 N. E. 722, and a wire on or above the highway. It is those objects that come between the extremes that present the factual question whether or not they are discernible.”

In Farris v. Columbus, 85 Oh Ap 385, the same court holds that the rule has no application where the obstacle in front is a hole in the street and is for the first time in the driver’s view, after the vehicle has passed the point where the rule would be effective, and the hole is then too close to be avoided. See also: McNair v. State, 305 Mich. 181, 9 N. W. (2d) 52. The Farris case also turns largely upon the sudden emergency doctrine.

With regard to the instant case, there can be no question that had the accident occurred in daylight, the roll of steel was such a discernible object that the court could determine the question as a matter of law. The fact that the accident occurred at night does not change the size or character of the object. The driver was required to use a distribution of light, or composite beam, directed high enough and of sufficient intensity to reveal persons, vehicles and substantial objects at a safe distance in advance of his vehicle subject to the requirement and limitation that when approaching another vehicle, the driver shall use a composite beam so directed that the glaring rays are not projected into the eyes of the oncoming driver. Sec. 6307-88 GC. Every driver of an automobile at night soon becomes aware of the hazard of driving with the lower beam which reflects upon the highway and over the berm for a relatively short distance as compared to the distance using the upper beam. But this requirement only cuts down the assured clear distance ahead and requires the driver to slacken his speed in order to comply with the rule. No person shall drive any motor vehicle at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead. “By force of the statute, the motorist may therefore assume nothing that is not assured to him by the range of his vision.” Smiley v. Arrow Spring Bed Co. supra.

The rule is harsh and tends to defeat the ends of justice in its application to circumstances disclosed by the instant case wherein it might be contended that the negligence of the defendant was so gross as to amount to wanton misconduct’, but until the rule is changed by the legislature this court is bound to follow the interpretation of the rule as announced by the Supreme Court.

It is therefore concluded that the roll of steel was a substantial discernible object and that plaintiff’s decedent was guilty of negligence per se proximately contributing to his death. The judgment is therefore reversed and final judgment entered for the defendant.

Judgment reversed and final judgment for defendant. Exc. Order see journal.

CARPENTER, J, concurs, CONN PJ, dissents.

(See Dissenting Opinion by CONN, PJ.)

CONN, PJ,

(Dissenting).

The admission of negligence on the part of the defendants as a proximate cause of the death of John E. McFadden, plaintiff’s decedent, and the stipulation of the parties as to amount of damages in the event plaintiff is entitled to recover, eliminated all issues raised on the pleadings and the evidence, excepting that of the contributory negligence of plaintiff’s decedent. This issue was submitted to the trial court, trial by jury having been waived. Under these circumstances, the trial judge was the trier both of the facts and of the law.

At the conclusion of all the evidence, defendants moved to dismiss the petition of plaintiff and enter judgment for defendants on the ground that plaintiff’s decedent was guilty of contributory negligence as a matter of law which proximately caused or contributed to his death. This motion was overruled and the issues of both fact and law were determined by the trial court in plaintiff’s favor and judgment entered accordingly.

The motion of defendants for judgment was essentially a demurrer to the evidence. The issue raised on this motion, under well settled rules of procedure, imposes on the trial court the duty of determining whether or not, on the whole record, there was credible evidence, together with all reasonable inferences arising therefrom, which tended to establish the issue of defendant’s liability.

None of the witnesses called saw the collision. The undisputed evidence shows that the roll of steel fell on the easterly lane of the highway, where it made a sizeable dent in the road and that the distance from this point to the place where it was finally located in the easterly lane was 109 feet; that it was upgrade from the point where it fell into the highway to the place where it lay; that the roll of steel had a considerable dent on its flat side extending from the center toward the rim, the deepest part of the dent being at the center and that there were no skidmarks on the pavement.

From these facts it may be reasonably inferred that the truck from which the steel roll fell was moving southerly; that the roll of steel, after falling, was in an upright position, did not remain static and rolled to the place where the collision occurred; that at the time of the impact, it was in an upright position with one of its flat sides facing traffic moving northerly in the easterly lane; that from the character of the dent, the demolished condition of the automobile, the noise of the crash and the car’s immediate “roll into the ditch’” it is inferable that the impact was one of great force and that from the absence of skidmarks it may be inferred also that the roll of steel suddenly came into the path of the approaching vehicle. A further inference arises that the testimony of defendant’s driver would be unfavorable to them from the failure of defendants to call him to testify, or explain his absence.

In view of the evidence and the inferences which reasonably appear to arise, an issue of fact was presented and the trial court did not err in overruling defendant’s motion for a judgment.

A more difficult question arises on the fact issue of discernibility of the roll of steel, assuming that the assured clear distance of plaintiff’s decedent was not cut down or lessened by its sudden appearance into the easterly lane of the highway. There is credible evidence disclosing that the roll of steel was almost as dark as the pavement and that its color was almost identical with the pavement.

The Ohio cases cited in the majority opinion clearly establish that the operator of a motor vehicle is guilty of contributory negligence, as a matter of law, when his vehicle collides with a substantial object in the highway, unless “because of circumstances over which he had no control, compliance with the law was rendered impossible.”

Impossibility of compliance may arise as a fact issue in-certain instances, excluding those related to weather conditions, character of the highway or certain conduct of other users of the road, when the court can not say that the assured clear distance ahead rule applies as a matter of law: Somewhere between an object on the highway, let us say, of the size of a motor truck and an object the size of a small nail or a wire stretched across the highway, a fact issue arises as to whether or not the particular physical object is substantial and discernible. In other words, at what point in respect to size is a physical object in the highway non-discernible to the operator of a motor vehicle so as to make it impossible to comply with the statute? When reasonable minds arrive at different conclusions in this regard a question of fact arises.

It is my conclusion that the trial court did not err in overruling defendants’ motion for a directed verdict and that its finding and judgment is not manifestly against the weight of the evidence or contrary to law.

      Footnote (1) : Possibly because of reference in the option to Iowa cases, counsel on both sides have referred to a number of Iowa cases as well as those from other jurisdictions. Decisions in other jurisdictions subsequent to the Spring Bed case are of interest but not persuasive in the absence of any relaxation by the Ohio Supreme Court of the strict rule announced in the Spring Bed case.

      ) From the failure of the defendant to call the driver to testify, it may be inferred that his testimony would not be favorable to the defendant, but negligence was admitted and it cannot be inferred that the driver was guilty of wanton misconduct from the mere presence of the steel roll on the highway.


author: By MILLER, PJ: By THE COURT:

text:
    SHAFER, Plaintiff-Appellant, v. NATIONAL LIFE & ACCIDENT INSURANCE COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County-
    No. 2063.
    Decided April 14, 1950.
    Otterbein Creager, Dayton, for plaintiff-appellant.
    Beigel & Mahrt, James S. Stubbs, Dayton, for defendantappellee.
   OPINION

By MILLER, PJ:

The question presented by this appeal is whether the trial court erred in directing a verdict for the defendant at th® close of all of the evidence. The action was one to recover the death benefits under the terms of a life insurance policy. One of the defenses set up in the answer was that the insured was not in good health at the time of the issuance of the policy. The policy provided that it was not to take effect as an obligation of the defendant unless the insured was in good health at the time of its delivery. In order to maintain its defense the defendant offered as its own witness Dr. Lawrence Gough who testified that he had been the insured’s physician for a number of years; that he had treated her for high blood pressure and migraine headaches at his office for a number of years beginning in 1939, and that he gave her sedatives, prescribed that she cut down on her eating and slow down her activities; that he once ordered her to a hospital for rest and observation, and that “nothing organic could be found”; that he never called on her at her home, and that she always came to his office; that approximately 35% of his medical patients had high blood pressure; that she died in his office on the evening of February 2, 1948, and that he filled in her death certificate naming the cause of death,, coronary thrombosis and occlusion, and giving malignant hypertension, duration 1939, as other conditions. .He also related facts from which the inference of lack of •good health on March 17, 1947, the delivery date of the policy, might have been made.

The defendant also called as a witness Dr. W. L. McCowan, the defendant’s medical examiner, who testified concerning his examination of the insured; that there being nothing to suggest that she was suffering from high blood pressure he did not take the same, as it was not required for the size of the policy being issued. There is, however, a conflict in the testimony as to whether Dr. McCowan took the blood pressure of the insured. The plaintiff testified that he was present when the examination was made and that her blood pressure was taken; that he knew the method of taking one’s blood pressure, as he had his taken by Dr. Gough sometime prior thereto. The defendant’s agent testified that he regarded her as being in good health when he delivered the policy. The plaintiff and numerous other witnesses who had observed the insured in her place of business all testified as to her apparent good health at the time of the delivery of the policy.

The questions presented are, (1) was the testimony of these lay witnesses of any probative value since the medical testimony was to the effect that the insured’s illness was not apparent but could only be detected upon physical examination? (2) was there any evidence tending to establish that

the insured was in good health at the time of the issuing of the 'policy? The appellee cites the case of Magyar, Admx., v. The Prudential Life Ins. Co., 133 Oh St 563, wherein the Court in considering the first question held at page 565:

“ * * * that the only evidence of any probative effect respecting the actual physical condition of the assured at the time of the issuance of his policy was that of the physician referred to, and therefore that there is no conflict whatever in the evidence adduced which may be considered to be of probative value upon the sole issue in that case.”

In the Magyar case, supra, the only evidence other thair medical touching the condition of the insured’s health at the time of the issuance of the policy was the testimony of the insured’s son and a former agent of the defendant, that the insured then looked or appeared in good health, and also the testimony of the widow that the insured was in good health before his last sickness. The facts in this case are not identical with those in the case at bar. The appellant cites the case of Vida v. Metropolitan Life Insurance Company, which was decided in the same opinion as the Magyar case, supra, as supporting his contention. In this case the Court held that, since there was evidence in the record denying that the medical witness had made the examination concerning which he testified, and other witnesses had testified as to the good health of the insured, there was a direct and vital conflict of evidence upon the only issue in the case and it should be determined by the jury. In the case at bar there was no denial that the medical witnesses had seen, examined and treated the insured as they had testified, but there is a conflict in the testimony as to the taking of the insured’s blood pressure. Whether or not it was taken was a question of fact for the determination of the jury. Should it have resolved this question in the affirmative a reasonable inference would have been that she was not suffering from high blood pressure as claimed, or the same would have been reported by the examining physician. An inference is a permissible deduction which the jury may make without express direction of the law to that effect. If different inferences may be drawn from the evidence it is the function of the jury and not of the court to draw those inferences from the evidence deduced and to find ultimate conclusions of fact. Should the jury conclude that the examining physician found no indication of high blood pressure this would be some evidence tending to indicate that the insured was in good health. This determination would not be based upon the testimony of lay witnesses as against that of medical men, but would be based upon an inference as to a condition found to exist by the examining physician, to wit, no high blood pressure. It is our conclusion that the testimony of the lay witnesses was of itself of insufficient probative value in this case to carry it to the jury, Magyar v. Prudential Life Ins. Co., supra, but based upon the medical testimony and that of the lay witnesses there was some evidence from which the jury could find that the insured was in good health at the time of the issuing of the policy. The appellee does not urge, and we do not find, that the instructed verdict could be sustained under the second defense.

The judgment will therefore be reversed and the cause ordered remanded for a new trial.

HORNBECK and WISEMAN, JJ, concur.

ON APPLICATION FOR REHEARING

No. 2063. Decided May 20, 1950.

By THE COURT:

This is an application for a rehearing for the alleged reason that the opinion of this Court required an inference to be based upon another inference before it could be found that the insured was in good health at the time of the issuing of the policy of insurance. We cannot agree with this conclusion. The record discloses that the cause of the insured’s bad health was high blood pressure, and if the jury found there was no high blood pressure from the inference we found might exist, then the insured was not in bad health, the only evidence to establish this having failed.

We adhere to our former ruling and the application will be denied.

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


author: By HANNA, J.

text:
    SUHAY (SUKAY) v. WHITING.
    Common Pleas Court, Cuyahoga County.
    No. 603772.
    Decided January 31, 1950.
    Harrison, Thomas, Spangenberg & Hull, Craig Spangenberg, Cleveland, for plaintiff.
    William M. Byrnes, Cleveland, for defendant.
   OPINION

By HANNA, J.

This case is before the Court on the motion of the defendant to quash service of summons made upon him by the Sheriff of Cuyahoga County.

From the pleadings and the evidence adduced at the hearing on the motion to quash service of summons it appears that on the 14th day of July, 1945, in Geauga County, Ohio, an automobile owned by Steve Suhay and operated by Steve Suhay, Jr., collided with a truck owned by Mollie Bolek and operated by Harlow Whiting and in said collision Steve Suhay, Sr., sustained injuries resulting in his death and Steve Suhay, Jr., received injuries to his person. Mary Suhay was appointed by the Probate Court of Geauga County as administratrix of the estate of Steve Suhay, Sr. Steve Suhay, Jr., Mary Suhay, the administratrix, Mollie Bolek and Harlow Whiting are residents of Geauga County, as was Steve Suhay, Sr., at the time of his death. Several days prior to the filing of this action in this court a representative of the office of plaintiff’s counsel visited Harlow Whiting at his sand pit in Geauga County and contracted with him for the purchase of five loads of gravel and the delivery of the gravel upon property in Cuyahoga County owned by Marvin C. Harrison, of counsel for the plaintiff.

This action was filed on June 21, 1949, and summons issued for service upon the defendant. On June 23rd the defendant Whiting made delivery of three loads of gravel to the premises owned by Harrison. As he completed the delivery of the third load, he started to leave the premises with the empty truck, when he was hailed by John P. Guarnera, a deputy sheriff of Cuyahoga County. After identifying the driver of the truck as Whiting — the deputy sheriff attempted service of the writ upon him.

There are two branches to the motion: The first, directed to the physical aspect of the service, claims that there was no “legal, valid or proper” service of the writ upon the person of the defendant; the second claims that at the time service upon him was attempted the defendant, a non-resident of Cuyahoga County, had been lured into this county for the purpose of effecting service.

Upon consideration of all the evidence offered, the issue presented by the first branch of the motion is resolved in favor of the plaintiff, the Court being of the opinion that the defendant has not sustained the burden of proving his contention that the writ never touched his person, and that service upon him therefore was not effected.

In its deliberation upon the issue raised by the second branch of defendant’s motion the Court has had the benefit of the briefs of counsel and has made not inconsiderable research of its own, conducted as the demands of presiding in a trial room have permitted.

Of necessity we considered the question of venue. In modern phraseology venue means the place, whether it be county or district, wherein a cause is to be tried. It differs entirely from the ancient meaning of the word when the jury was constituted of witnesses to prove or disprove the allegations of the litigants who were presumed to have personal knowledge of the parties as well as of the facts. Under the historical English Common Law a jury could not try a matter arising in another county and an action could be brought only in the county wherein the cause of action arose. With the gradual change in the jury system this rule was relaxed and modified particularly with reference to transitory actions as distinguished from local actions. Today in most jurisdictions the venue of actions is wholly regulated by statute, as it is in this State.

However, many of the rules and principles which obtained at common law must have been considered by the Legislature of Ohio when it enacted the statutory provisions with respect of venue and service of summons. We can well imaginé that the lawmakers considered the principle of “forum domicilii” as well as that of “forum conveniens.”

Both plaintiff and defendant are residents of Geauga County. The collision between the motor vehicles out of which this litigation arises occurred in Geauga County. When we consider access to source of proof, availability of compulsory process for the attendance of unwilling witnesses, the possibility of a requested view of the premises and all other practical problems that make trial of a lawsuit easy, expeditious and inexpensive, it readily appears that Geauga County is the “forum conveniens” for the trial of this action.

It is provided, inter alia, in §11277 GC, that * * *

“* * * every other action (this action does not fall within the exception so as to be included in the term ‘other’) must be brought in the county in which a defendant resides or may be summoned * * *.”

This specific reference to residence, along with other provisions for service (e. g., mail service) recognizes the validity of service at a defendant’s residence and reflects the legislative intent that actions should normally be brought in the county of defendant’s domicile.

Sec. 11277 GC, appears to give consideration to the common law rule of “forum domicilii” which is defined in Ballentine’s Law Dictionary as “The forum of domicile; the place or jurisdiction where a man resides and has the right to be sued.”

In actions for injury to a person or property caused by the negligence of the owner or operator of a motor vehicle, provision has been made whereby such action may be brought in the county wherein the injury occurs, though the statute in its present form differs from the early form of the statute which permitted it to be brought in the county in which the injured person resided. This is in recognition undoubtedly of the transitory nature of such actions and the likelihood of an automobilist injuring another while many miles from his residence and while using facilities provided through the efforts and at the expense of the county in which the collision occurred.

In order that a plaintiff may not be restricted to a single forum by a requirement that an action be brought in the county where the defendant resides the statute provides alternatively that it may be brought “where he may be summoned.”

In 32 Corpus Juris, the author says, at page 391:

“The service of summons means the judicial delivery of a summons or a copy thereof to the opposite party in such manner as legally to charge him with notice of receiving it.”

It is claimed by the defendant that in the instant case service was made upon him after he had been “lured into Cuyahoga County by the plaintiff and plaintiff’s counsel and representatives for the sole purpose of attempting service upon this defendant in Cuyahoga County.” If this claim be substantiated the defendant could not legally be charged with such notice.

We believe the rule to be well stated in 32 O. Jur. where, at page 406, the author says:

“However, the mere fact that the defendant came within the jurisdiction of the court as a result of some act of the plaintiff does not render the service objectionable if the plaintiff’s act was not an invitation to the defendant to • come and did not amount to a trick or device to bring him within the jurisdiction * *
“When he has come within the jurisdiction upon request of another in such manner as to be protected from service of summons at the instance of the latter he can not properly be served with such summons until a reasonable time to permit him to leave the jurisdiction has expired after the conclusion of the deliberations or business in reference to which his presence was sought.”

In support of his statement the author cites the case of Pilcher v. Graham, 18 O. C. C. 5, where at page 9, Judge Voorhees says:

“One who induces another to come into the jurisdiction to consult over their controversy cannot have him served with summons until after a reasonable time for departure from the jurisdiction after the termination of the business upon which he has been invited to come.”

(Miami Powder Co. v. Griswold, Superior Court of Cincinnati, 6 Am. Law Rec. 464.)

“If a party be enticed or decoyed into the jurisdiction of a court or induced to come by any device and advantage is taken of his presence to serve him with process it will be set aside.”

The case of Miami Powder Company v. Griswold is also found in 6 O. Dec. Rep. 532. In that case the defendant was a resident of Buffalo and was induced to come to Cincinnati to discuss business and upon his arrival was served with summons. The Court in granting the motion to quash held that the defendant could not validly be served until he had a reasonable time to leave the jurisdiction of the court after concluding the business upon which plaintiff had invited him to come within the jurisdiction. There is a plethora of authorities which so hold.

We do not concur with defendant’s counsel in his conclusion as to the motive of his opponent. We are inclined to believe that in his zeal to promote the interests and welfare of his client plaintiff’s counsel sought to' bring this case within the rule laid down by Mr. Justice Holmes in the case of Jaster v. Currie, 198 U. S., 144, the facts of which case caused it to be distinguished from the case in which the general rule applies. Zeal in asserting or defending the rights of a client shall ever be a jewel in the lawyer’s crown and shall ever merit praise from Bench and Bar alike; and if it is true that this case does not fall within the rule laid down by Mr. Justice Holmes, the facts constituting a ground to set aside the service herein are set forth and gain no new force from vituperative epithet.

It is the contention of the plaintiff that under the rule laid down in the case of Jaster v. Currie, supra, service upon the defendant while in the jurisdiction was valid. In that case suit was brought in Nebraska upon a judgment obtained in Ohio. The plaintiff had previously brought an action in Nebraska for the same cause and had served notice upon defendant’s attorney that plaintiff’s deposition for use in the Nebraska case would be taken in Ohio on September 5th, 1899. The defendant came to Ohio to attend the taking of the deposition. After the deposition was taken the defendant went to his father’s home in the same Ohio county where he apparently remained until September 8th. On September 7th he was served with a writ in a suit in the Ohio court. While the briefs were not available to this court we assume that they were read by the editors of the Lawyer’s Edition of the Supreme Court Reports (Book 49) where it appears from the report of the. case that the plaintiff in error urged—

“It cannot be true that attending the taking of depositions in Ohio grants defendant eternal immunity from service in Ohio. A reasonable time to return is all he can ask.”

The fact that defendant lingered in Ohio from September 5th to September 7th, instead of immediately returning to Nebraska when his business was concluded, was evidently persuasive as Mr. Justice Holmes says, at page 148:

“On the other hand the defendant could be served with process if he saw fit to linger in Ohio.”

In the instant case had the business negotiations been initiated with the defendant for the delivery of the slag with the hope that he would deliver the slag himself or at least accompany the driver to Cuyahoga County, and that following the delivery of the slag he would not immediately return to Geauga County but would linger beyond a reasonable time and be available for service of a writ upon him in Cuyahoga County, and had such hopes been realized and service made upon the defendant while he lingered, we would have held such service valid. But the record shows that the business arrangement was for the delivery of five loads of slag; that the writ was served upon the defendant immediately after the third load had been delivered and while he was seated in his truck, his mode of conveyance. It can hardly be said that the business had been concluded for which plaintiff’s representatives had invited defendant to come within the jurisdiction.

. We believe that there exists in the instant case an essential variance from the facts of the Jaster case, and that the rule of law announced by Mr. Justice Holmes in that case has no application here.

The court is of the opinion that service in the instant case was wrongfully effected. To hold otherwise, and to validate service in Cuyahoga County upon the nonresident defendant while he was in this county transacting business initiated by the plaintiff, would do violence to sound rules of law. The motion to quash service of summons upon the defendant is granted.


author: By THE COURT. By THE COURT.

text:
    STATE ex MONAHAN, Relator, v. FERGUSON, Aud. et, Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 4494.
    Decided November 17, 1950.
    Matthew L. Bigger, Columbus, for relator.
    Hon. Herbert S. Duffy, Atty. G.enl., Charles T. Kaps, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By THE COURT.

This is an action in mandamus originating in this Court in which the relator says that he is employed as an examiner in the office of Joseph T. Ferguson, Auditor for the State of Ohio; that he is and has been assigned in the Division of Liquor audits under said Auditor of State; that his work as such examiner carries him over the State of Ohio, necessitating the expenditure of money for traveling, hotel and other incidental expenses in order to perform and discharge the duties imposed upon him; that his work consists in auditing the various warehouses and stores under the control of the Department of Liquor Control and that this work carries him ail over the State; that he uses his own automobile and pays all operating expenses thereof in performing his duties; that the use of such automobile comes under regulations covering traveling expenses, revised November 14, 1944, promulgated by the Department of Finance; that he was and is entitled to expenses and reimbursement for such expenses and outlay at the rate of six dollars and fifty cents per day for subsistence and six and one-half cents per mile for the use of his automobile. Relator says further that he has personally expended approximately the sum of $1200.00 for such subsistence and use of his automobile over a period of ten months; that he has made claim for such sum to ■ the Auditor of State and that there is now in the fund sufficient money to pay such claim; .that in discharging said duties he was acting as agent of the State and is entitled to full reimbursement for expenses actually and necessarily incurred in the discharge of his duties.

The relator states further that the defendant H. D. Defenbacher is the duly appointed and qualified Director of Finance of the State of Ohio and as such it is his duty to certify to the Auditor of State that the money is available under law where with to pay such claim, and that the money is available.

Relator prays that a writ of mandamus be issued requiring these defendants to allow and pay the claim as set forth.

Respondents have filed a demurrer to the petition for the reason that the same does not state a good cause of action.

The question here presented is whether or not the relator’s salary is fixed by §276 GC, which fixes the salary for examiners in the Bureau of Inspection and Supervision of Public Offices in the Department of Auditor of State. The relator urges that since he audits the Department of Liquor Control, that he does not come under the provisions of §276 GC. This section provides:

“The chief inspector and supervisor shall appoint such assistants as he deems necessary, who shall be known as state examiners, and assistant state examiners. State examiners and assistant state examiners shall receive the following compensation for each day necessarily employed by them in the discharge of such duties as may be assigned to them and for each day absent on leave, not exceeding twelve days in each year; grade one A examiners, fifteen dollars; grade one B examiners, fourteen dollars; grade one C examiners, thirteen dollars; grade two A examiners,, twelve dollars; grade two B examiners, eleven dollars; grade two C examiners, ten dollars; grade three A examiners, nine dollars; grade three B examiners, eight dollars; grade one A assistant examiners, seven and one-half dollars; grade one B assistant examiners, seven dollars; grade one C assistant examiners, six and one-half dollars; grade two A assistant examiners, six dollars; grade two B assistant examiners, five and one-half dollars; grade two C assistant examiners, five dollars. The chief inspector and supervisor shall determine the grade of each state examiner and assistant state examiner. Each state examiner and assistant state examiner shall be allowed mileage at the rate of five cents per mile when traveling on official business under orders of the chief inspector and supervisor or the deputy inspectors and supervisors, and an allowance of two dollai's per day, in lieu of personal maintenance expenses, when away from home or the place of his or her principal assignment. Should any such examiner or assistant be called upon to testify in any legal proceeding in regard to any official matters, they shall be entitled to the compensation and expense herein provided, to be paid in the same manner, but shall not be entitled to witness fees.”

The duties of the Bureau of Inspection and Supervision of Public Offices is defined by §274 GC, requiring it to inspect and supervise the accounts of all state offices. We are of the opinion that the duties of the relator bring him within this classification. It will be noted that §6064-10 GC recognizes the duties performed by this relator as coming under the Bureau of Inspection and Supervision of Public Offices, wherein it provides:

“The cost of examination by state examiners of the bureau of inspection and supervision of public offices rendered to the department of liquor control, shall be charged against the moneys in the custody of the treasurer of state for the use of the department, by the auditor of state on statements rendered quarterly for services rendered during the preceding quarter.” (Emphasis ours.)

The demurrer will be sustained since there is no clear legal duty imposed upon these respondents to allow and pay the expense account claims as submitted.

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

ON APPLICATION FOR REHEARING

No. 4494. Decided December 28, 1950.

OPINION

By THE COURT.

This is an application for a rehearing upon the Court's ruling to the respondents’ demurrer to the petition when an amended petition had been filed and which was not considered by the Court.

We have examined the amended petition and find the same legal question is presented, to wit: Whether or not the relator’s salary and expenses are fixed by §276 GC, which fixes the,salary and expenses for examiners in the Bureau of Inspection and Supervision of Public Offices in the Department of Auditor of State. Therefore, no new question has been presented, and the application will be denied.

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


author: By STEVENS, PJ.

text:
    GLEITZ, III, A Minor etc., Plaintiff-Appellant, v. GLEITZ, Sr., et al, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21944.
    Decided February 5, 1951.
    Hyman J. Blum, Cleveland, for plaintiff-appellant.
    Miller & Hornbeck, Cleveland, for defendants-appellees.
    (STEVENS, PJ, HUNSICKER, J. DOYLE, J, of the 9th District sitting by designation in the Eighth District.)
   OPINION

By STEVENS, PJ.

In the trial court an action for damages was brought by a minor three years old, through his mother and next friend, against his paternal grandparents, to recover for the loss of “love, affection, society, guidance and companionship of his father” who, it is alleged, was maliciously and wilfully induced by the defendants to break up plaintiff’s home and family.

A demurrer to the plaintiff’s amended petition was interposed by the defendants for the reason that the amended petition failed to state a cause of action against the defendants.

Upon consideration thereof, the trial court sustained the demurrer and the plaintiff, not desiring to plead further, the action was dismissed and judgment entered for the defendants for their costs.

This appeal on questions of law ensued.

The question presented is: May a child, acting through his mother as next friend, maintain an action against third persons for wrongfully and maliciously disrupting the family circle thereby depriving him of the affection, companionship, guidance and care of his father?

Concededly no such action was known to the common law, and there is in Ohio no statutory authority for the maintenance of such an action.

It is urged by the appellant, however, that upon the principle “there shall be no wrong without a remedy therefor” plaintiff appellant should be permitted to present his case to a jury, and that if the law, either statutory or common law, affords no remedy to plaintiff, then the courts should create such remedy.

Much has been said and written concerning “judicial empiricism” or the right of courts to legislate. However, the members of this court are of the opinion that the right to create new legal rights and remedies is by the supreme law of our state, vested in the legislative bodies and not in the courts; and we do not feel constrained to encroach upon the prerogatives of the legislative branch of the government.

We recognize that there are divergent lines of authority upon the question under consideration. However, we think the weight of authority and reason requires adherence by us to the rule announced in Nelson v. Richwagen, 95 N. E. (2d) 545.

We hold that if a right such as is here asserted is to be created in Ohio, the legislature and not the courts must create it.

Judgment affirmed. Exc. Order see journal.

HUNSICKER, J, DOYLE, J, concur.